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CERTAINTY 
AND    JUSTICE 


CERTAINTY 
AND    JUSTICE 

STUDIES    OF   THE   CONFLICT    BETWEEN 

PRECEDENT  AND   PROGRESS  IN  THE 

DEVELOPMENT  OF  THE  LAW 


BY 


FREDERIC   R.  COUDERT 


cXCXA. 


'<^ 


NEW  YORK  AND  LONDON 
D.   APPLETON    AND    COMPANY 


CoPYRir.HT.  I0I1.  BV 

D.  APPLETON   AND   COMPANY 


Printed  in  the  United  States  of  America 


K  --^ 
AIC8 

PREFACE 

The  conflict  between  the  wisdom  of  past  gen- 
erations as  embodied  in  "Precedent"  and  the  ideas 
of  the  present  day  concerning  right  and  justice, 
usually  denominated  "Progress,"  has  been  for  some 
time  past  more  than  usually  acute.  Questions  that 
were  formerly  relegated  to  the  dry  discussions  of 
legal  technicians  have  now  found  their  way  into  the 
press  and  into  the  forum  of  partisan  political  con- 
troversy. 

It  appeared  to  me  that  these  studies  might 
consequently  be  of  some  general  interest  at  the 
present  moment  and  in  the  somewhat  disturbed  state 
of  public  opinion  on  so  many  questions  of  funda- 
mental importance. 

The  substance  of  the  chapters  here  entitled  "Cer- 
tainty and  Justice,"  "Jury  Trial  as  an  Instance  of 
Constitutional  Development,"  and  "Criminal  Pro- 

V 

207909 


PREFACE 
cediire  and  the  Constitution"  appeared  in  the  Vale 
Law  Review  in  May,  1905,  and  March,  191  o. 

"The  Constitution  and  Our  New  Peoples"  and 
"Perversion  of  Precedent"  appeared  in  the  Colum- 
bia Law  Review  of  January,  1903,  and  March, 
1909. 

The  chapter  on  "The  Law  and  Our  Industrial 
Development"  with  slight  modification  appeared  in 
the  North  American  Review  of  July,   191 1. 

"Aliens  and  the  Progress  of  the  Law,"  "The 
Modern  Treatment  of  Political  Crime"  and  "The 
Crisis  of  the  Law"  furnished  in  the  main  the  sub- 
stance of  addresses;  the  first  two  at  annual  meet- 
ings of  the  Society  of  International  Law,  at  Wash- 
ington, 191 1  and  1909,  and  the  latter  at  the  an- 
nual meeting  of  the  American  Bar  Association,  at 
Boston,  August,  191 1. 

The  two  remaining  chapters  are  now  published 

for  the  first  time. 

Frederic  R.  Coudert, 

1913 

vi 


CONTENTS 

CHAPTER  PAGE 

I. — Certainty  and  Justice  .....         i 


V 


II. — The  Challenge  to  the  Constitution    . 

III. — What  is  the  Matter  with  the  Law?  . 

IV. — Jury   Trial   as    an    Instance   of    Con.stitu 
TioNAL    Development  .... 

V. — Criminal   Procedure  and  the  Constitution 


VI. — The   Constitution   and    Our   New   Peoples; 

Citizens,    Subjects,    Nationals  or  Aliens     129 


VII. — The  Law  and  Our  Industrial  Development 
'The  Rule  of  Reason"      ... 

VIII. — Perversion  of  Precedent.   Stare  Decisis.  His 
TORY  Misinterpreted  .... 

IX. — Aliens  and  the  Progress  of  the  Law  . 

X. —  Progress   of   Interwational   Law    in    Treat 
MENT  OF  Political  Crime    ... 

XI. —  The  Crisis  of  the   Law;    Professional   In 
competency  ..... 


24 

35 

59 

lOI 


159 

205 
244 

271 
303 


Vll 


CERTAINTY     AND    JUSTICE 


CERTAINTY    AND    JUSTICE 

'TT^  HERE  is  in  all  modern  states  to-day  a  general 
-*■  conflict  between  certainty  in  the  law  and 
concrete  justice  in  its  application  to  particular  cases; 
in  other  words,  between  the  effort  to  have  a  general 
rule  everywhere  equally  applicable  to  all  cases  at 
all  times  and  the  effort  to  reach  what  may  seem 
to  be  concrete  right  dealing  between  the  parties  at 
bar  upon  the  particular  facts  in  each  case.  On  the 
one  side  is  made  an  appeal  to  "Progress" ;  on  the 
other  to  "Precedent." 

In  actual  practice  the  pendulum  swings  first  one 
way  and  then  the  other.  The  social  necessity  for 
stability  in  the  law  is  unquestioned.  Law  is  neces- 
sarily a  rule  of  action,  and  unless  a  court  decides 
cases  according  to  some  cohesive  plan  or  definite 
rules,  the  justice  administered  is  scarcely  deserving 
of  the  name  of  law,  however  closely  it  may  fall 

z 


CERTAINTY    AND   JUSTICE 

in  with  Ihc  ethical  notions  of  the  community  as 
regards  any  particular  case.  On  the  other  hand, 
when  rules  become  so  fixed  and  rigid  that  they  are 
difficult  or  impossible  to  change,  the  law  is  out  of 
touch  with  j)rcvailing  views  of  social  expediency, 
which,  like  other  opinions,  are  constantly  changing; 
the  law  thus  necessarily  becomes  a  clog  upon 
national  development,  an  incentive  to  revolutionary 
reform. 

Among  semi-civilized  people,  absolute  adhesion 
to  the  letter  of  the  law  is  the  prevailing  system. 
In  the  ancient  Roman  law  of  the  twelve  tables,  con- 
tracts in  order  to  have  any  validity  had  to  be  made 
in  specific  formulae,  or  by  the  repetition  of  certain 
particular  words.  It  was  not  the  substance  of  the 
contract  relation — that  is  to  say,  the  meeting  of 
the  minds  and  the  consent  of  the  parties  as  to  the 
subject-matter  of  the  contract — that  was  looked  to, 
but  the  formalities  by  which  that  meeting  was  evi- 
denced. The  legal  value  still  attached  to  the  use 
of  a  seal  attests  the  mystic  force  of  form  among 
primitive  peoples. 

Again,  in  the  medieval  world,  trial  by  ordeal 
supplanted,  to  a  great  degree,  the  rational  methods 
of  determining  facts.  There  was  no  doubt  felt  of 
the  guilt  of  the  man  whose  feet  were  burned  by 
walking  on  red  hot  iron,  and  this  method  had  the 
advantage  of  leaving  open  no  questions  for  dispute. 

2 


CERTAINTY   AND   JUSTICE 

But  with  the  growth  of  modern  civiHzation,  came 
the  necessity  for  applying  to  law  cases  a  general 
ethical  standard  according  in  some  degree  with  that 
of  the  age. 

Nevertheless,  a  reasonable  degree  of  certainty  is 
a  necessity  in  every  system  of  law ;  as  a  consequence, 
the  common  law  doctrine  of  Stare  Decisis  was 
gradually  evolved  by  the  English  law  courts  as  one 
mode  of  bringing  about  some  sort  of  coherence  in 
the  justice  administered  by  tribunals  and  in  formu- 
lating the  justice  into  rules  of  law.  That  the  doc- 
trine is  an  old  one  does  not  admit  of  doubt  and 
modern  research  seems  to  indicate  that  it  was  first 
vaguely  adumbrated  as  far  back  as  the  fourteenth 
century. 

In  truth  the  doctrine  is  founded  upon  one  of  the 
peculiarities  of  human  nature  which  in  its  ultimate 
analysis  is  based  upon  the  imitative  faculty  in  man. 
The  mass  of  men  will  naturally  follow  in  a  beaten 
track,  rather  than  branch  out  into  new  anil  un- 
trodden ways,  and  the  courts  naturally  fell  into 
the  habit  of  following  precedent,  just  as  merchants 
fall  into  the  habit  of  following  certain  usages  of 
trade  which  after  a  time  harden  into  customs.  In 
this  way  the  judges,  by  making  a  line  of  uniform 
decisions  on  any  question,  create  a  judicial  custom 
which  in  its  turn  acquires,  almost  unconsciously, 
the  force  of  law. 


CERTAINTY   AND   JUSTICE 

Nor  must  it  be  forgotten  that  law  courts  are 
much  older  than  legislatures,  hence  their  power  to 
retard  or  expedite  legal  development  was  once  much 
greater  than  it  now  is.  The  activity  of  modern 
legislatures  is  of  very  recent  date. 

That  the  English  courts  have  gone  much  farther 
than  our  own  in  upholding  the  dignity  of  the  doc- 
trine of  Stare  Decisis,  may  be  easily  illustrated  by 
one  or  two  prominent  instances.  In  1843  the 
famous  case  of  Queen  v.  Millis  (10  C.  and  F,  534) 
came  before  the  House  of  Lords.  The  case  was 
a  prosecution  for  bigamy.  The  question  there  in- 
volved was  as  to  whether  a  marriage  contracted  in 
Ireland,  without  the  presence  of  an  ordained  clergy- 
man or  priest  of  the  Church  of  England,  was  valid. 
The  Marriage  Act  not  applying  there,  the  common 
law  alone  governed.  It  was  contended  that  in 
England  the  presence  of  a  priest  had  been  unneces- 
sary to  such  marriage  by  the  rule  of  the  canon  law 
prevailing  throughout  western  Christendom  up  to 
the  time  of  the  decree  of  the  Council  of  Trent, 
w^hich,  owing  to  the  separation  of  the  Church  of 
England  from  the  Roman  Catholic  Church,  had 
not  come  into  force  there.  The  House  of  Lords 
however,  decided  from  one  or  two  precedents,  which 
historic  research  has  now  discovered  were  er- 
roneously interpreted,  that  the  law  of  England  in 
this  particular  had  differed  from  that  of  the  rest  of 

4 


CERTAINTY    AND   JUSTICE 

Western  Europe  and  that  a  marriage  without  the 
presence  of  such  priest  was  invahd.  The  decision 
was  reached  by  a  divided  court,  the  members  of 
that  tribunal  standing  three  to  three,  the  form  of 
the  question,  however,  being  such  that  the  decision 
was  necessarily  in  favor  of  the  invalidity  of  the 
marriage. 

In  1861  this  historically  erroneous  decision, 
reached  by  an  equally  divided  court,  was  brought 
in  question  before  the  same  tribunal  in  the  case 
of  Beemish  v.  Bcanish  (IX  H.  L.  275).  The  very 
same  questions  being  again  presented,  a  majority, 
at  least,  of  the  judges  were  of  the  opinion  that 
the  decision  of  Queen  v.  Millis  was  reached  upon 
a  false  historical  basis  and  that  the  precedents  ad- 
duced from  the  early  English  law  to  support  that 
decision,  were  misunderstood  by  the  court.  Lord 
Campbell  himself  took  that  view.  Nevertheless,  the 
court  felt  bound  to  follow  that  case  and  decided, 
contrary  to  the  historic  fact,  that  a  marriage  with- 
out the  presence  of  a  clergyman  of  the  Church  of 
England  was  and  always  had  been  invalid  at  the 
common  law. 

In  rendering  this  decision.  Lord  Campbell  said 
that  he  felt  himself  bound  by  the  doctrine  of  Stare 
Decisis  and  that  to  depart  therefrom  would  be  a 
usurpation  upon  the  part  of  the  House  of  Lords. 
His  theory  was  that  the  law  once  laid  down  by  that 

5 


CERTAINTY    AND   JUSTICE 

tribunal  became  the  law  of  the  land,  as  binding 
upon  the  tribunal  itself,  as  upon  every  other  sub- 
ject, and  changeable  only  by  the  supreme  authority 
of  Parliament.  This  case  contains  the  strongest 
utterances  that  I  have  been  able  to  find  uphold- 
ing the  absolute  obligation  of  the  rule  of  Stare 
Decisis. 

"Had  the  present  case  been  brought  here  by  writ 
of  error  previously  to  the  decision  of  this  House 
in  the  year  1844  in  the  case  of  Queen  v.  Millis,  I 
should  not  have  hesitated  in  advising  your  Lord- 
ships to  affirm  the  judgment  in  favor  of  the  valid- 
ity of  the  marriage  and  the  legitimacy  of  the  re- 
spondent." 

After  giving  his  reasons  for  believing  that  a 
marriage  without  the  presence  of  a  priest  was  valid 
at  the  common  law,  he  continues : 

"However  it  must  now  be  considered  as  having 
been  determined  by  this  House  that  there  could 
never  have  been  a  valid  marriage  in  England  before 
the  Reformation,  without  the  presence  of  a  priest 
episcopally  ordained,  or  afterward  without  the 
presence  of  a  priest  or  of  a  deacon  *  *  *  My 
Lords,  the  decision  in  the  case  of  the  Queen  v. 
Millis  that  unless  a  priest  especially  ordained  was 
present  at  the  marriage  ceremony  the  marriage  was 
null  and  void  and  the  children  of  the  marriage  were 
illegitimate,  seemed  to  me  so  unsatisfactory,  that  I 

6 


CERTAINTY   AND   JUSTICE 

deemed  it  my  duty  to  resort  to  the  extraordinary 
proceeding  of  entering  a  protest  against  it  on  your 
Lordships'  journal." 

And  yet  he  continues : 

"But  it  is  my  duty  to  say  that  your  Lordships 
are  bound  by  this  decision  as  much  as  if  it  had  been 
pronounced  nemine  dissentient c  and  that  the  rule 
of  law  which  your  Lordships  lay  down  as  the 
ground  of  your  judgment,  sitting  judicially,  as  the 
last  and  Supreme  Court  of  Appeal  for  this  Empire, 
must  be  taken  for  law  till  altered  by  an  act  of 
Parliament  agreed  to  by  the  Commons  and  the 
Crown  as  well  as  by  your  Lordships.  The  law 
laid  down  as  your  ratio  decidendi  being  clearly 
binding  on  all  inferior  tribunals  and  on  all  the  rest 
of  the  Queen's  subjects,  if  it  were  not  considered 
as  equally  binding  upon  your  Lordships,  this 
House  would  be  arrogating  to  itself  the  right  of 
altering  the  law  and  legislating  by  its  own  sepa- 
rate authority." 

The  ardent  law  reformer,  Bentham,  in  his  dread 
of  judicial  encroachment  could  hardly  have  gone 
farther  in  limiting  the  power  of  appellate  courts. 

It  must  be  remembered,  however,  that  even  in 
England  that  useful  and  somewhat  modern  instru- 
ment— the  distinction — is  not  unknown  and  the  re- 
sults of  strict  adherence  to  Stare  Decisis  may  in 
many  cases  be  escaped  or  mitigated  by  the  use  of 

7 


CERTAINTY   AND   JUSTICE 

that  now  highly-developed  weapon,  even  where  to 
the  ordinary  mind  the  distinction  would  not  seem 
to  involve  any  appreciable  difference. 

It  is  a  rather  curious  thing  that  Lord  Campbell's 
views,  which,  at  the  time  of  their  utterance,  seemed 
to  be  in  every  respect  most  conservative,  were 
enunciated  in  almost  the  same  language  by  Mr. 
William  J.  Bryan  in  his  campaign  as  candidate  of 
the  Democratic  Party  for  the  Presidency  in  1896. 
At  that  time  he  was  generally  looked  upon  as  an 
extreme  radical,  and  his  views  as  to  the  Supreme 
Court  were  the  subject  of  severe  strictures. 
I  do  not  now  intend  to  comment  upon  their  wisdom 
or  unwisdom,  but  his  underlying  view,  as  I  under- 
stand it,  was  that  the  Supreme  Court  once  having 
passed  upon  a  question,  that  decision  became  the 
law  of  the  land  and  was  binding  upon  that  august 
tribunal  as  well  as  upon  all  other  American  citizens. 
That  view,  which  to  many  seemed  so  startling  as 
to  savor  of  revolution,  in  any  event  had  in  it  nothing 
of  novelty,  and  if  Mr.  Bryan  did  not  cite  the  au- 
thority of  Lord  Campbell,  it  was  probably  because 
he  had  overlooked  it.  Whether  the  doctrine  as 
enunciated  by  him  would  have  sounded  less  harsh 
had  it  been  backed  by  the  authority  of  that  great 
name,  it  is  impossible  to  say.  In  the  heat  of  political 
conflict  it  might  have  mattered  little. 

It  is  a  significant  but  not  unusual  fact,  however, 
8 


CERTAINTY   AND   JUSTICE 

that  the  same  doctrine  should  be  considered  as  over- 
conservative  or  as  over-radical,  dependent  upon  the 
position  of  the  person  announcing  it  and  the  cir- 
cumstances of  its  announcement. 

Mr.  Justice  Holmes,  one  of  the  leading  authori- 
ties on  the  history  of  English  laws,  adopts  what 
would  seem  to  be  a  very  different  standpoint.  lie 
believes  the  judge-made  law  to  be  a  slow  and  steady 
growth  which  must  adapt  itself  to  present  needs 
and  present  necessities,  and  that  the  formal  rules 
of  the  syllogism  do  not  and  should  not  be  allowed 
to  fetter  the  judges  in  reaching  a  result  compatible 
with  present  ethical  notions  and  sound  public  policy. 

"On  the  other  hand,  in  substance  the  growth 
of  the  law  is  legislative.  And  this  in  a  deeper 
sense  than  that  what  the  courts  declare  to  have 
always  been  the  law  is  in  fact  new.  It  is  legis- 
lative in  its  grounds.  The  very  considerations 
which  judges  most  rarely  mention,  and  always  with 
an  apology,  are  the  secret  root  from  which  the 
law  draws  all  the  juices  of  life.  I  mean  of  course, 
considerations  of  what  is  expedient  for  the  com- 
munity concerned.  Every  important  principle 
which  is  developed  by  litigation  is  in  fact  and  at 
bottom  the  result  of  more  or  less  definitely  under- 
stood views  of  public  policy;  most  generally,  to  be 
sure,  under  our  practice  and  traditions,  the  uncon- 
scious result  of  instinctive  preferences  and  inar- 
ticulate convictions  but  none  the  less  traceable  to 
views  of  public  policy  in  the  last  analysis.    And  as 

9 


CERTAINTY    AND   JUSTICE 

the  law  is  administered  by  able  and  experienced 
men.  who  know  too  much  to  sacrifice  f^ood  sense  to 
a  syllogism,  it  will  be  found  that,  when  ancient  rules 
maintain  themselves  in  the  way  that  has  been  and 
will  be  shown  in  this  book,  new  reasons  more  fitted 
to  the  time  have  been  found  for  them,  and  that 
they  gradually  receive  a  new  content,  and  at  last 
a  new  form,  from  the  grounds  to  which  they  have 
been  transplanted." 

This  latter  view  would  seem  to  be,  at  least  in 
practice,  the  one  more  generally  prevalent  in  the 
United  States.  The  highest  courts,  although  ex- 
pressing great  regard  for  the  doctrine  of  Stare 
Decisis,  do  not  hesitate  to  overrule  prior  decisions 
upon  the  ground  that  they  were  erroneously  ren- 
dered, as  the  Supreme  Court  itself  has  done  upon 
several  occasions  notably  in  the  Legal  Tender  and 
Income  Tax  cases  and  the  Passenger  cases.  The 
soundness  of  this  latter  view  depends  upon  how 
far  conformity  to  present  standards  of  justice  is 
more  important  than  certainty  as  to  what  the  law 
actually  is.  It  would  surely  be  better  if  more  cases 
were  overruled  directly  than  by  the  indirect  method 
of  the  distinction. 

By  the  indirect  method  a  case  once  deemed  to  be 
law  is  gradually  so  honeycombed  with  exceptions 
and  distinctions  that  after  a  certain  number  of  years 
it  finally  collapses — in  the  meanwhile,  however,  like 
a  dangerous  derelict,  spreading  confusion  among 

JO 


CERTAINTY   AND   JUSTICE 

litigants,  and  consternation,  real  or  feigned,  among 
lawyers. 

It  is  to  be  deprecated  that  in  many  cases  respect 
for  "la  chose  jngee"  should  not  allow  the  case  to 
be  directly  overruled.  In  the  long  run  it  may  well 
be  questioned  whether  the  maintenance  or  the  dig- 
nity of  the  doctrine  of  Stare  Decisis  profits  by  the 
respect  apparently  paid  to  it  through  a  resort  to 
distinctions  that  do  not  distinguish. 

On  the  other  hand,  a  strict  adherence  to  the  ad- 
judged cases  would  prevent  all  progress  in  the  law, 
as  has  been  pointed  out  by  Mr.  Justice  Matthews  in 
the  famous  case  of  Hurtado  v.  California  (no  U. 
S.  516),  and  would  result  in  a  rigidity  incompatible 
with  social  progress : 

"To  hold  that  such  a  characteristic  is  essential  to 
due  process  of  law,  would  be  to  deny  every  quality 
of  law  but  its  age,  and  to  render  it  incapable  of 
progress  or  improvement.  It  would  be  to  stamp 
upon  our  jurisprudence  the  unchangeableness  at- 
tributed to  the  laws  of  the  Medcs  and  Persians." 

That  delightful  and  most  erudite  old  writer,  Mon- 
taigne, gives  an  instance  of  how  far  false  respect 
for  a  judicial  decision  may  be  carried.  He  says 
that  he  heard  of  a  case  occurring  in  his  time  in 
which  a  thief,  having  been  convicted  by  the  magis- 
trates of  a  certain  French  province,  was  condemned 

II 


CERTAINTY    AND   JUSTICE 

to  flcalii.  While  avvaitin|T^  execution  the  jiulgcs  of 
a  neighboring  province  sent  word  tr)  the  judges  of 
the  tribunal  that  had  condemncfl  the  supposed  cul- 
prit, that  the  real  culprit  had  been  found,  had  con- 
fessed his  guilt  and  was  about  to  be  punished.  The 
judges  of  the  first  court  held  solemn  deliberation 
on  the  question  as  to  whether  justice  required  that 
the  innocent  man,  adjudged  guilty,  should  be  freed 
or  whether  respect  for  "la  chose  jiigcc"  did  not 
require  that  the  court  should  proceed  with  the  exe- 
cution of  the  sentence.  The  latter  view  prevailed. 
The  dignity  of  the  tribunal  was  thus  sustained  by 
the  prompt  and  solemn  execution  of  the  legally 
adjudged  guilty,  but  in  fact  innocent,  victim. 

The  truth  is  that  the  courts  are  constantly  oscil- 
lating between  a  desire  for  certainty  on  the  one  hand 
and  a  desire  for  flexibility  and  conformity  to  present 
social  standards  upon  the  other.  It  is  impossible 
that  in  a  progressive  society  the  law  should  be  ab- 
solutely certain;  it  is  equally  impossible  that  the 
courts  should  render  decisions  conforming  to  the 
prevailing  notions  of  equity  without  thereby  caus- 
ing a  considerable  degree  of  uncertainty,  owing  to 
the  constant  fluctuations  in  moral  standards  and 
their  application  to  new  and  unforeseen  conditions. 

New  opinions  are  often  due  to  economic  changes, 
and  many  views  regarding  natural  rights  or  indi- 
vidual liberty  which  were  held  fundamental  in  the 

12 


CERTAINTY   AND   JUSTICE 

last  century  sometimes  find  little  support  in  the 
public  opinion  of  the  twentieth  by  reason  of 
altered  social  and  economic  conditions. 

The  rights  of  the  man  were  once  opposed  to  those 
of  the  State  alone.  The  individual  is  now  opposed 
not  only  to  the  State,  but  also  to  great  aggregates 
of  wealth  in  corporate  form  possessing  in  a  large 
degree  public  powers.  The  rules  as  to  freedom  of 
contract  evolved  before  the  rise  of  corporations  as 
the  main  factors  in  the  business  world  are  not  al- 
ways justly  applicable  to  present  conditions. 

When  a  series  of  questions  has  finally  become 
settled,  such  as  the  law  relating  to  partnership  or 
negotiable  instruments,  it  is  because  that  particular 
branch  of  business  has  reached  for  the  time  being, 
at  least,  an  ultimate  form  and  we  have  certainty 
in  law  because  we  have  fixity  in  business  custom 
and  opinion. 

It  has  been  happily  said  that  the  sense  of  equity 
of  one  generation  is  generally  the  law  of  the  next, 
but  this  very  fact  involves  a  slow  process  of  change 
and  adaptation  resulting  in  consequent  uncertainty. 

There  is  much  criticism  at  the  bar  and  among 
the  people  at  the  present  time,  of  the  growing  un- 
certainty of  law,  as  enunciated  in  judicial  decisions; 
panaceas  of  all  kinds  are  suggested  by  zealous  and 
sometimes  intelligent  men,  but  the  law  reformer  is 
a  dangerous  animal  and  one  often  calculated  to  do 

13 


CERTAINTY    AND   JUSTICE 

infinite  mischief.  lie  usually  Inlieves  himself 
to  possess  more  concentrated  wisdom  than  all  the 
generations  of  lawyers  and  judi^es  who  have  ^''one 
before,  and  actual  experience  has  proved  that  his 
self-valuation  is  not  infre(iuently  an  over-appraisal. 

It  is  perhaps  not  unprofitable  to  inquire  whether 
the  people  of  the  Continent  of  Europe  are  so  much 
better  off  than  ourselves  in  regard  to  certainty  in 
their  law^.  An  extended  attempt  at  comparison  on 
this  point  would  involve  work  far  beyond  the  scope 
of  this  chapter.  A  few  reflections,  however,  upon 
the  Continental  method  may  not  be  without  interest. 

The  fear  of  the  uncertainty  of  judge-made  law 
and  the  usurpation  of  courts  has  been  even  more 
prevalent  in  Europe  than  in  America.  The  recent 
attack  on  the  courts  is  no  new  thing. 

The  French  law  was  supposed  not  to  recognize 
the  authority  of  adjudged  cases,  but  in  fact  the  re- 
sult actually  reached  is  very  similar  to  that  in  Eng- 
land and  America.  The  Court  of  Cassation  was 
established  for  the  purpose  of  unifying  judge-made 
law,  which  had  been  made  uniform  as  far  as  legis- 
lation could  effect  it,  by  the  Code  Napoleon.  The 
Court  of  Cassation  has  jurisdiction  over  all  cases 
coming  up  from  the  various  courts  of  appeal,  of 
which  there  are  some  twenty-six.  in  France,  and, 
by  the  Statute  of  1837,  the  decisions  of  the  Court 
of  Cassation  were  made  authoritative,  so  that  they 

14 


CERTAINTY   AND   JUSTICE 

had  to  be  followed  by  all  courts  of  appeal.  This 
statute  was  made  necessary  by  the  hopeless  conflicts 
which  had  arisen  between  the  various  courts  of  ap- 
peal, and  the  uncertainty  thus  engendered  was  so 
great  as  to  call  for  radical  remedy.  But  in  addition 
to  the  decisions  of  the  Court  of  Cassation,  the 
French  judges  in  the  courts  of  appeal  naturally 
desire  to  have  a  certain  amount  of  uniformity  in 
their  decisions  and  therefore  where  one  or  two 
similar  decisions  are  rendered  they  are  generally 
followed  and  a  judicial  usage  on  the  subject  is  thus 
established,  much  as  in  England  or  America.  The 
only  practical  difference  would  seem  to  be  that  the 
French  courts  will  not  hesitate  to  overrule  a  case 
which  they  believe  has  become  antiquated  or  was 
originally  erroneously  decided,  and  thus  they  do 
not  so  frequently  resort  to  the  method  of  the  dis- 
tinction which  with  us  not  infrequently  accomplishes 
the  same  result  through  fiction.  As  a  consequence 
the  French  lawyer  is  confronted  with  a  great  num- 
ber of  reports,  the  number  of  reported  opinions  in 
France  being  perhaps  greater  than  that  of  any  one 
state  of  the  Union. 

The  Code  Napoleon  left  certain  great  gaps  which 
could  only  be  filled  in  by  legislation  or  by  judge- 
made  law.  That  almost  unique  body  of  law  once 
hailed  as  the  ideal  code  for  all  peoples  has  now  been 
found  to  contain  no  remedy  for  many  modern  evils. 

15 


CERTAINTY   AND   JUSTICE 

As  commercial  corporations  liad  scarcely  begun  to 
develop  at  the  time  of  the  adojHion  of  the  Code, 
there  was  almost  nothing  in  that  body  of  legislation 
to  cope  with  the  modern  conditions  which  grew  up 
thereafter,  and  hence  under  the  Second  Empire  the 
void  had  to  be  filled  and  a  detailed  law  of  corpora- 
tions enacted. 

In  many  instances  provisions  of  the  Code  have 
been  in  effect  wholly  repealed  by  judicial  decisions 
so  that  a  directly  opposite  result  from  that  desired 
by  the  codifiers  has  been  in  fact  reached.  Trusts 
were  abolished  by  the  Code  and  yet  have  been  to 
a  great  extent  revived  by  the  courts.  State  annuities 
were  not  attachable  under  the  French  law,  but  by 
a  long  line  of  decisions  a  result  has  been  reached 
which  in  fact  makes  them  attachable  for  debt,  and 
other  instances  to  the  same  effect  might  be  cited.  , 

It  must  also  be  remembered  that  the  Code,  ad- 
mirable as  it  is  by  reason  of  its  lucidity,  due  in 
great  measure  to  the  French  language  so  wonder- 
fully adapted  to  the  expression  of  clear  thought,  is 
now  becoming  in  many  respects  antiquated.  A 
movement  is  on  foot  in  France  to  change  the  Code 
in  essential  particulars.  The  nation  feels  that  its 
system  of  law  has  been  more  or  less  outgrown  and 
finds  itself  in  the  condition  of  a  boy  who  has  out- 
grown his  youthful  clothes.  The  system  of  French 
law  is  criticized  as  one  incompatible  with  the  notions 

i6 


CERTAINTY   AND   JUSTICE 

of  to-day,  as  belonging  in  many  respects  to  a  social 
system  which  has  in  great  measure  passed  away. 
The  French  Minister  of  Justice  at  the  celebration 
of  the  centenary  of  the  "Code  Civil,"  1904,  used 
the  following  significant  language : 

"The  Code  Civil  did  not  and  could  not  foresee 
everything.  It  would  be  puerile  to  deny  that  it 
needs  revision,  for  in  fact  Parliament  does  revise 
it.  Already  many  drafts  of  laws  on  corporations 
and  insurance  are  presented  for  enactment  into  leg- 
islation which  really  present  the  appearance  of  spe- 
cial codes,  and  in  addition  the  work  of  making  a 
Code  of  Labor  is  progressing. 

"Thus  the  great  voids  in  the  Civil  Code  are 
being  filled  in.  Moreover,  judicial  decisions  reveal 
from  day  to  day  the  new  needs  of  society  and  apply 
the  will  of  the  nation  to  particidar  cases,  disclose 
new  formulce  and  reveal  nezu  sources  of  lazv  by  pro- 
viding new  sources  of  light. 

"I  would  ask  to  have  a  great  commission  ap- 
pointed to  compare  our  Civil  Code  with  those  of 
other  peoples,  to  note  the  differences,  to  analyze  the 
solutions  of  the  new  problems  adopted  by  foreign 
legislations,  and  to  study  the  solutions  reached  by 
our  neighbors,  in  order  that  we  may  profit  from  the 
work  of  all,  as  all  have  profited  from  the  work  of 
the  French  jurists. 

"The  more  the  intellectual  domain  of  humanity 
is  enlarged,  the  more  the  development  of  industry 
and  of  science  diversify  forms  of  production  and 
forms  of  property,  the  more  the  political  ascend- 

17 


CERTAINTY   AND   JUSTICE 

cncy  of  the  proletariat  tends  to  cause  a  recognition 
l)y  society  of  new  rights  and  of  contracts  hereto- 
fore unknown,  the  less  can  it  he  pretended  that  a 
code  can  contain  and  hcni  in  the  powerful  move- 
ments of  a  nation's  life. 

"What  then  is  the  use  of  our  re-making  our 
Code  from  the  beginning?  It  never  prevented 
changes  in  the  law,  nor  did  it  ever  paralyze  the  law. 
It  can  be  adapted  to  every  change  and  seems  like 
a  well-conceived  plan  where  every  degree  of  prog- 
ress may  naturally  be  placed  under  its  proper  classi- 
fication." 

It  is  thus  very  doubtful  whether  the  French  law 
is  any  more  certain  than  our  own.  If  ours  be  more 
uncertain  we  are  inclined  to  believe  that  it  is  be- 
cause economic  changes  here  have  taken  place  more 
rapidly  than  elsewhere,  and  greater  pressure  has 
been  put  upon  the  courts  to  decide  cases  arising  out 
of  novel  business  situations. 

The  fact  is  that  the  two  systems,  English  and 
Continental,  while  founded  upon  different  theoretical 
bases  are  tending  toward  much  the  same  results 
in  much  the  same  way.  Law  reformers  have  been 
for  a  long  time  suggesting  the  codification  of  our 
law.  As  far  as  greater  certainty  is  concerned.  I 
do  not  see  any  advantage  to  be  derived  from  codifi- 
cation. The  main  objection  to  codification  is  the 
difficulty  of  obtaining  from  our  legislatures  a  good 
code   and  one  that    is  not   in  constant   danger  of 

i8 


CERTAINTY   AND   JUSTICE 

amendment  for  the  purpose  of  meeting  specific 
cases.  That  monstriim  horrenduyn,  the  Code  of 
Civil  Procedure  of  New  York,  is  so  lamentable  a 
monument  of  the  failure  of  legislative  attempts  at 
codification  that  it  is  not  necessary  to  refer  to  it 
in  detail. 

The  foreign  codes  have  the  advantage  of  a  fixed 
and  settled  terminology  derived  from  the  Roman 
law.  They  were  made  by  experts  and  are  com- 
paratively little  subject  to  legislative  change.  In 
addition  it  must  be  remembered  that  the  making  of 
the  Code  Napoleon,  as  well  as  that  of  the  recent 
German  Code,  was  due  to  a  desire  for  uniformity 
in  law  rather  than  of  certainty.  As  Voltaire  re- 
marked of  old  France:  "One  changed  systems  of 
jurisprudence  each  time  one  changed  his  omnibus;" 
therefore  the  Code  was  made  for  the  purpose  of 
giving  the  nation  a  national  law  rather  than  for 
the  obtaining  of  certainty  in  any  one  or  more 
branches  of  the  law.  Some  of  the  Continental 
codes  are  very  defective  and  have  hindered  legal 
development. 

The  French  Code  of  Commerce  is  inferior  to  the 
Code  Civil  in  every  respect.  It  demonstrates  one 
of  the  most  marked  defects  of  code  law  in  that 
it  codifies  commercial  usages  of  the  seventeenth 
century  and  thus  retards  the  development  of  French 
law  in  those  important  particulars. 

19 


CERTAINTY   AND   JUSTICE 

Another  objection  to  a  coflc  is  Ihril  even  a  well- 
constructed  code  would  help  us  little  in  making 
the  law  more  certain.  The  general  principles  or 
rules  on  many  subjects  are  pretty  well  settled  and 
easily  stated.  The  common  law  of  tort,  partnership, 
or  negotiable  instruments  is  admirably  summed 
up  in  various  te.xt-books  and  can  without  great 
difficulty  be  codified,  but  that  would  do  little  to  help 
us  out  of  our  difficulties,  for  the  problem  arising  in 
these  branches  of  the  law  is  usually  not  what  is 
the  rule  of  law,  but  which  of  several  rules 
apply  to  the  facts  of  the  case.  The  divisions 
that  have  taken  place  in  our  Supreme  Court 
have  not  been  due  to  common  law  questions, 
but  to  questions  arising  under  various  statutes  and 
under  the  Constitution  of  the  United  States,  one 
of  the  clearest  and  most  admirable  of  written  in- 
struments. As  the  most  familiar  instance  of  this, 
it  is  only  necessary  to  cite  the  Insular  cases,  the 
Legal  Tender  cases,  the  Income  Tax  cases  and  the 
anti-trust  law  cases.  In  each  of  these  the 
difficulty  has  been  to  ascertain  whether  the  law 
applied  to  a  particular  state  of  facts  and  if -it  did 
apply,  which  portion  of  it  was  applicable.  Did  the 
Sherman  Act  intend  to  codify  the  common  law? 
Was  it  merely  declaratory  or  was  it  revolutionary? 
The  answer  must  be  sought  in  many  opinions  ex- 
tending over  a  period  of  years.     Such  questions 

20 


CERTAINTY   AND   JUSTICE 

cannot  be  avoided  and  constantly  arise  under 
statutes. 

And  again,  should  we  codify  our  law,  the  old 
decisions  would  be  cited  as  an  attempt  to  show 
what  the  law  was  intended  to  do  and  we  would  not 
get  rid  of  the  mass  of  case  law  which  now  so 
sorely  burdens  and  perplexes  the  practitioner. 

The  civil  law  of  Rome  grew  largely  out  of  com- 
mentaries on  the  Twelve  Tables,  and  it  was  really 
the  commentators  who  expressed  the  law,  long  after 
the  Twelve  Tables  had  ceased  to  represent  the  legal 
views  of  the  time.  Justinian  endeavored  by  law  to 
prevent  the  writing  of  commentaries  on  his  Code 
and  Napoleon  is  reported  to  have  exclaimed,  when 
it  was  announced  to  him  that  a  commentary  on  the 
code  had  already  appeared :  "My  code  is  lost !" 
There  is  thus  no  patent  remedy  for  the  situation  of 
legal  uncertainty  that  confronts  us.  It  is  due  to 
changing  social  conditions  and  the  conflict  of  new 
opinions  with  old  ones,  which  is  now  at  so  acute  a 
stage. 

Mr.  Henry  C.  Lea,  the  eminent  American  his- 
torian, has  said  that  if  you  wish  to  understand  the 
ideas  that  dominate  a  particular  age,  you  must  ex- 
amine its  jurisprudence.  Perhaps  the  complex  and 
confused  condition  of  our  jurisprudence  is  a  more 
faithful  reflex  of  the  public  mind  than  we  realize. 
Certain  great  branches  of  the  law  have  been  pretty 

21 


CERTAINTY    AND   JUSTICE 

thoroughly  worked  out  and  the  ideas  of  the  com- 
munity thereon  crystplhzcd  into  positive  rules. 
Whether  this  has  been  codified  or  is  found  in  the 
judicial  decisions,  is  of  little  importance.  On  other 
great  questions,  such  as  the  relation  of  capital  and 
labor  and  of  corporations  to  the  state  and  the  in- 
dividual, the  public  mind  is  in  a  flux.  It  will  be 
impossible  to  get  uniformity  in  this  regard  until 
we  have  some  uniformity  in  opinion,  which  will 
then  reflect  itself  through  legislation  and  through 
judge-made  law.  The  one  will  be  confused  and 
incoherent,  the  other  vacillating  and  uncertain  until 
such  a  time  arrives. 

For  the  present,  reforms  in  the  administration  of 
the  law,  the  selection  of  able  men  as  judges,  the 
leaving  of  procedural  questions,  as  has  been  done 
in  Massachusetts,  largely  to  the  regulation  of  the 
courts  themselves  by  means  of  rules,  are  all  desir- 
able and  immediate  objects  of  attainment.  But  to 
make  the  law  certain  on  subjects  as  to  which  the 
community  itself  is  most  uncertain,  is  a  task  that 
never  has  yet  and  never  will  be  accomplished.  If 
the  Hindoo  laws  are  unchanged  and  unchangeable, 
it  is  because  the  Hindoo  himself  has  not  changed 
and  does  not  wish  to  change  his  opinions  and  ideas 
nor  the  actions  which  flow  from  them.  When,  if 
ever,  we  reach  that  stage  the  question  of  certainty 
and  justice  will  become  academic. 

22 


CERTAINTY   AND   JUSTICE 

It  is  the  uncertainty  of  public  opinion,  class  con- 
flicts, contending  theories  of  the  function  of  the 
state  that  have  finally  led  many  honest  reformers 
as  well  as  mere  demagogues  to  question  the  value 
of  our  present  constitutional  system. 


II 

THE  CHALLENGE  TO  THE  CONSTITUTION 

A  FTER  a  century  of  veneration  and  a  civil  war 
**  waged  to  maintain  it,  our  constitutional  struc- 

ture in  many,  if  not  in  all  of  its  parts,  is  challenged 
from  various  quarters.  The  shock  that  the  attacks 
of  the  Democratic  Platform  and  leaders  gave  to  a 
great  portion  of  the  nation  in  1896,  by  their  criti- 
cism of  the  federal  Judiciary  and  the  Income 
Tax  decision,  is  past  history.  No  such  sensitive- 
ness is  now  generally  prevalent.  The  public  is  quite 
blase  even  to  attacks  far  more  radical,  and  it  is  idle 
to  reply  by  the  adducing  of  sentimental  considera- 
tions. Von  Hoist  has  said  that  the  veneration  so 
rapidly  developed  among  Americans  for  the  Con- 
stitution was  an  extraordinary  phenomenon  since 
that  instrument  had  been  in  fact  a  resultant  of  com- 
promise with  which  none  of  the  framers  had  been 
satisfied.  Von  Hoist's  attitude  leaves  out  of  con- 
sideration that  ever  present  phase  of  national 
psychology  which  requires  some  object  about  which 
a  people's  sentiments  may  gather  if  the  nation  is  to 

24 


CHALLENGE   TO   THE    CONSTITUTION 

be  strong  and  homogeneous.  If  the  original  strength 
of  the  Constitution  was  at  the  outset  in  its  merits, 
its  maintenance  was  owing  to  its  having  become 
the  subject  of  a  cherished  tradition  based  upon  senti- 
ment rather  than  reason.  That  this  sentiment  has 
greatly  declined  during  the  last  fifteen  years  it  is 
impossible  to  deny.  There  is  a  growing  belief, 
shared  by  persons  of  all  grades  of  intelligence, 
that  the  system  as  developed  is,  in  part  at  least, 
outworn,  that  its  basic  principle  that  all  laws  de- 
clared contrary  thereto  by  the  courts  are  void,  has 
become  a  weapon  of  the  strong  against  the  weak, 
the  intrenchment  of  oligarchy,  not  the  bulwark  of 
popular  freedom. 

It  has  not  been  my  purpose  in  this  chapter  to 
examine  into  the  truth  of  these  charges  or  the 
causes  which  have  led  to  a  belief  in  their  wide 
acceptance.  I  would,  in  passing,  merely  point  out 
that  even  conceding  their  substantial  truth  arguendo, 
it  does  not  at  all  follow  that  the  most  important 
feature  of  our  constitutional  system  must  be  elimi- 
nated nor  even,  indeed,  emasculated.  That  system  is 
based  upon  one  cardinal  doctrine  which  every  think- 
ing man  must  either  reject  or  accept.  Any  middle 
position  is  intellectually  indefensible,  and  the  popu- 
lar leader  who  tries  the  straddle  must  sooner  or 
later  be  found  out.  The  doctrine  is  simple  but  far 
reaching.     As  applied  to  the  national  government 

25 


CERTAINTY    AND   JUSTICE 

it  is  this :  The  nation  in  the  most  careful,  solemn 
and  delii)crate  fashion  estahlished  a  governmental 
system  distributing  power  between  the  states  and 
the  general  government  and,  moreover,  embodied 
therein  a  series  of  safeguards  for  individual  liberty 
which  the  great  mass  of  the  nation  at  that 
time  believed  to  be  the  resultants  of  human  wisdom 
as  applied  to  government.  The  written  instrument 
in  which  these  results  are  embodied  was  the  Consti- 
tution, but  these  liberties,  so  specially  safeguarded, 
rested  themselves  upon  the  deepest  traditions  of 
English  speaking  people.  The  Constitution  was  not, 
however,  looked  upon  as  in  itself  sacrosanct  or 
unchangeable,  and  careful  provision  was  made  for 
amendment;  that  this  provision  should  be  modi- 
fied in  the  direction  of  facilitating  amendment  is 
quite  possible,  and  furnishes  fair  subject  for  debate. 
The  recent  ratification  of  the  Income  Tax  Amend- 
ment proves  that  the  provision  is  workable  even 
though  slow.  A  constitution  which  furnishes  no 
provision  for  amendment  merely  leaves  to  the  ulti- 
mate sovereign  the  determination  of  the  moment  at 
which  constitutional  changes  are  to  be  made  by 
^jtr/ra-constitutional  or  non-legsA  methods. 

One  difficulty  in  the  current  discussion  of  con- 
stitutional problems  has  been  to  find  out  the  exact 
attitude  of  the  critics.  Few,  if  any,  admit  that  they 
are  opposed  to  a  written  constitution  for  the  nation 

26 


CHALLENGE   TO   THE    CONSTITUTION 

or  even  for  the  states.  The  gist  of  the  agitation 
seems  to  be  mainly  directed  against  the  attitude  of 
the  courts  toward  certain  legislation  of  a  re- 
formatory character,  and  little  or  no  distinction 
is  attempted  between  the  merits  of  the  system 
itself  and  its  alleged  distortion  by  "fossili/.ed" 
judges.  A  very  few  of  the  more  logical  minded 
among  these  critics  maintain  that  "the  judicial  oli- 
garchy" should  be  done  away  with  and  the  func- 
tions of  the  court  as  an  interpreter  of  the  Constitu- 
tion abolished.  The  written  constitution  would 
then  become  merely  a  moral  limitation  upon  the 
legislature,  but  the  individual  could  claim  no  legal 
right  thereunder,  save  the  right  of  revolution. 

The  majority  of  critics,  however,  profess  to  be- 
lieve "in  our  constitutional  system,"  but  feel  that 
the  judges  have,  by  interpretation,  warped  the  mean- 
ing of  some  of  its  clauses,  mainly  that  prescribing 
that  "no  one  shall  be  deprived  of  property  without 
due  process  of  law,"  in  favor  of  the  rich  and  power- 
ful to  the  detriment  of  the  weak  and  humble.  In 
proof  of  this,  certain  decisions  of  the  United  States 
Supreme  Court  and  of  various  state  courts  are  ad- 
duced. These  cases  have  given  rise  to  much  debate 
and  I  purpose  to  discuss  some  of  them  here- 
after. My  present  thesis  is  that  even  conceding 
all  of  these  decisions  to  have  been  erroneous  in  that 
they  have  placed  upon  "the  due  process"  clause  an 

27 


CERTAINTY   AND   JUSTICE 

interpretation  unnecessarily  favorable  to  property, 
yet  it  is  impossible  to  say  with  certainty  that  the  in- 
tention of  tile  framers  of  either  the  federal  or  state 
constitutions  was  to  prohibit  wf)rknien's  compen- 
sation laws  limiting  hours  of  labor  or  other  like 
reformatory  industrial  legislation.  Such  legislation 
was  not  in  fact  and  could  not  have  been  foreseen, 
and  what  the  worthy  fathers  would  have  thought, 
had  they  divined  modern  industrial  development 
must  ever  remain  a  subject  for  conjecture.  My  own 
belief  is  that  they  would  have  divided  on  the  wis- 
dom of  our  modern  measures  as  they  did  on  so 
many  questions. 

That  there  is  room  for  difference  of  opinion  is 
manifest.  Personally,  I  incline  to  think  the  federal 
and  State  courts  generally,  and  perhaps  in  some  few 
instances  the  Supreme  Court,  have  taken  an  over- 
narrow  view,  and  that  few,  if  any,  of  the  advo- 
cated industrial  reform  and  taxation  measures  need 
have  been  construed  as  contrary  to  the  Constitution. 

Were  the  constitutions  unchangeable  by  normal 
prescribed  methods,  I  could  understand  the  agita- 
tion occasioned  by  these  decisions;  nor  do  I  now 
deprecate  their  discussion.  The  acts  of  courts  are 
no  more  immune  from  discussion  and  criticism  than 
those  of  legislatures.  It  is  academic  to  argue 
whether  or  no  interpretation  makes  law.  We  know 
that  in  all  the  instances  in  which  there  is  doubt  as 

28 


CHALLENGE   TO   THE    CONSTITUTION 

to  the  applicability  of  a  law  to  a  given  situation, 
some  governmental  power  must  exist  to  determine 
that  question.  The  courts  universally  do  so  in  the 
case  of  ordinary  statutes  and  daily  determine  which 
of  several  apparently  conflicting  laws  are  ap- 
plicable to  the  case  at  bar.  In  a  conflict  between 
a  law  and  the  Constitution,  the  function  of  the  court 
is  to  decide  between  a  lower  and  a  higher  law,  i.  e., 
one  which  expresses  more  adequately  the  real 
national  or  state  will.  This  is  no  peculiarity  of  our 
system  save  as  applied  to  the  Constitution.  State 
law  may  be  declared  void  when  in  conflict  with 
federal  law  or  local  ordinances  where  inconsistent 
with  general  State  law.  The  English  Privy  Council 
frequently  has  to  consider  the  validity  of  Canadian 
legislation  in  the  light  of  the  British  NorthAmerican 
Act,  which  is  the  paramount  law  for  Canada,  as  it 
also  does  in  the  case  of  other  colonies. 

Those  who  are  in  favor  of  any  written  constitu- 
tion at  all  must  recognize  this  necessity.  It  may  in- 
deed be  urged  that  the  statute  expresses  a  later 
popular  view,  and  is  in  reality  a  more  adequate  ex- 
pression of  the  national  or  State  will  than  the  Con- 
stitution, but  this  is  not  necessarily  so  and  the 
constitutionalist  may  well  reply  that,  in  such  event, 
the  proper  organ  for  the  determination  of  what  is 
really  the  popular  will  is  the  popular  sovereign  in 
his  capacity  as  constitution  maker  or  mender.    The 

29 


CERTAINTY   AND   JUSTICE 

state  is  not  necessarily  the  government,  and  the 
framers  intended  to  and  did  clearly  distinguish  be- 
tween the  two.  It  is  this  cardinal  fundamental 
distinction  so  admirably  and  forcibly  elucidated  by 
Professor  John  W.  Burgess,  in  his  great  work  (jn 
Political  Science  and  Constitutional  Law,  that  both 
critics  and  defenders  of  the  Constitution  and  the 
courts  overlook  or  ignore. 

The  real  distinction  between  those  who  believe  in 
a  written  constitution — and  they  are,  I  conceive,  still 
in  large  majority — and  those  who  do  not,  consists 
not  in  their  attitude  toward  certain  much-criticized 
decisions,  since  an  earnest  constitutionalist  may  ad- 
mit and  deplore  them  as  erroneous,  but  in  their 
attitude  toward  the  question  of  what  constitutes  the 
popular  will. 

Conservatives  have  fallen  into  the  error  of 
defending  certain  decisions  rather  than  the  con- 
stitutional system  itself.  If  the  majority  of  vot- 
ing adults  on  a  certain  election  day  be  considered  as 
complete,  adequate  and  final  proof  of  the  real  na- 
tional will,  then  a  paper  constitution  requiring,  for 
its  change,  months  of  discussion  and  a  large  ma- 
jority of  the  electorate  is  a  mere  obstruction  and 
should  be  swept  aw^ay.  I  could  understand  the  most 
vehement  critics  if  they  placed  themselves  fairly 
upon  this  ground,  but  I  fail  to  understand  the 
clamorous  critics  who  do  not  take  this  view.     If 

30 


CHALLENGE   TO   THE    CONSTITUTION 

their  criticisms  mean  anything,  they  mean  that  con- 
stitutions must  still  stand  as  higher  law,  i.  e.,  over- 
riding ordinary  statutes  in  case  of  conflict,  but  that 
they  are  now  too  difficult  of  amendment.  This  ad- 
mits the  wisdom  of  ascertaining  the  real  popular 
will  in  two  ways,  one,  the  ordinary  method  of  ex- 
pression adequate  to  ordinary  needs,  but  known  to 
be  defective  as  a  fair  register  of  a  settled  dominant 
opinion,  and  another  method  calculated  more  ade- 
quately to  express  and  place  on  record  the  funda- 
mental beliefs  of  the  State  or  nation  on  matters 
deemed  of  maximum  importance.  If  constitutional 
amendment  becomes  so  easy  as  to  be  in  effect  little 
more  than  a  statute,  this  fundamental  distinction 
is  abandoned. 

A  court  cannot  in  fact  determine  a  matter  by 
merely  applying  the  individual  standards  of  its  mem- 
bers. Law  connotes  rules,  system,  order.  The  acts 
of  the  Athenian  Assembly  were  not  laws.  They 
were  edicts  or  fiats  ad  hoc.  The  doctrine  that  a 
court  must  with  rare  exceptions  follow  some  rule 
drawn  by  induction  from  a  body  of  precedent  is 
the  settled  basis  of  English  and  American  juris- 
prudence and  prevails  in  fact,  if  not  so  fully  recog- 
nized in  theory,  in  Continental  Europe.  Critics  claim 
that  the  doctrine  of  Stare  Decisis  fastens  upon  this 
generation  constitutional  interpretations  suitable 
only  to  a  past  age,  but  inadequate  to  our  altered 

31 


CERTAINTY    AND   J U STICK 

and  still  rapidly  clianj^ing  civilization.  1  will  en- 
deavor to  show  that  so  far  fnjm  this  being  gen- 
erally true  (jf  the  Supreme  Court  of  the  nation,  in 
the  instance  of  the  right  to  jury  trial,  once  a  funda- 
ment of  American  law,  the  court  has,  through  a 
series  of  decisions,  dethroned  that  institution  from 
its  lofty  place  and  reclassified  it  as  a  mere  method 
of  procedure.  In  so  doing,  the  court  certainly 
brought  constitutional  law  into  harmony  with  the 
more  modern  view  of  thinkers  and  with  the  present 
attitude  of  the  public. 

True,  it  may  be  claimed  that  in  this  instance  the 
court  went  too  far  and  that  progress  quite  ran  away 
from  precedent.  Many  will  charge  that  this  is  judi- 
cial legislation  and  usurpation,  but  the  courts  will 
always  be  subject  to  the  criticism  of  either  going 
too  fast  or  too  slow,  depending  upon  the  point  of 
view  of  the  critic.  Some  are  all  for  precedent, 
others  for  progress.  The  fact  is  that  in  all  cases  of 
interpretation  as  to  which  men  may  fairly  differ,  and 
they  are  legion,  it  is  impossible  to  satisfy  even  all 
honest-minded  and  intelligent  critics.  The  only  cri- 
terion as  to  whether  the  court  was  right  from  the 
standpoint  of  progress  must  be  the  view  w^hich  will 
be  taken  of  the  decision  hereafter.  If  the  courts  are 
wholly  to  disregard  precedent  in  deciding  upon  the 
validity  of  statutes,  then  the  court  becomes  a  per- 
petual constitution  maker — a  very  real  judicial  oli- 

32 


CHALLENGE   TO   THE   CONSTITUTION 

garchy.  Yet  the  most  virulent  critics  of  courts  as 
oligarchic  are  those  who  clamor  for  more  liberal 
decisions,  i.  e.,  less  in  line  with  precedent.  Should 
their  views  find  acceptance,  the  judiciary  would 
become  in  truth  such  an  oligarchy. 

The  courts  have  indeed  to  find  a  middle  way  be- 
tween precedent  and  progress  or  certainty  and  jus- 
tice. No  infallible  method  can  be  found  to  avoid 
this  dilemma.  Doubtless  some  courts  have  gone  to 
one  extreme,  others  to  the  other.  I  can  only  sug- 
gest that  constitutional  decisions  be  fairly  and  fully 
discussed  and  that  where  the  highest  courts  cannot 
sustain  legislation  by  fair  reasoning  and  with  due 
regard  for  that  settled  precedent  without  which 
law  is  differentiated  from  anarchy,  then  proper 
amendment  be  made  to  the  Constitution. 

The  State  constitutions  are  readily  amendable. 
To  make  them  more  easily  so  would  be  to  give  to 
class  opinion  and  the  acts  of  minorities  as  to  funda- 
mental ([uestions  undue  weight.  Many  changes  in 
law  are  really  brought  about  by  minorities,  and 
perhaps  this  is  necessary  to  progress,  as  the  mass 
may  be  difficult  to  arouse,  but  this  should  not  be 
true  of  constitutional  law  if  there  be  any  distinc- 
tion between  that  and  statute  law.  When  funda- 
mental law  is  to  be  changed,  it  should  nut  be  the 
act  of  a  minority,  however  wise,  or  however  noisy, 
but  a  deliberate  judgment  of  the  whole  state  or 

33 


CERTAINTY   AND   JUSTICE 

nation  in  which  no  class,  however  needy,  or  how- 
ever powerful,  can  outweigh  all  the  others  together. 
This  and  nothing  more  is  what  we  claim  the  present 
system  is  intended  to  and  has  substantially  ef- 
fected. How  and  in  what  respects  the  courts,  in 
performing  their  great  function  of  passing  upon  the 
constitutionality  of  statutes,  have  subjected  them- 
selves to  just  criticism  will  form  the  subject  of  the 
next  chapter. 


Ill 

WHAT  IS  THE  MATTER  WITH  THE  LAW? 

T  T  is  evident  that  we  are  on  the  verge  of  important 
social  changes  following  hard  upon  economic 
transformations.  In  fact,  many  of  them  are  already 
at  hand  and  have  apparently  taken  us  unaware ;  as 
a  natural  resultant  we  find  a  general  dissatisfaction 
with  the  law  as  it  stands  to-day. 

The  ancient  concept  of  law  was  that  derived  from 
absolute  monarchy.  Under  the  great  Roman  system, 
that  which  pleased  the  Prince  had  the  force  of  law, 
and  as  the  absolute  monarchies  of  Continental 
Europe  and  of  the  Tudors  and  Stuarts  of  England 
grew  up,  this  concept  was  revived  and  found 
useful.  Blackstone's  idea  of  the  law  is  the  com- 
mand of  sovereign  power  which  must  be  obeyed  by 
reason  of  the  fact  that  it  emanates  from  an  absolute 
and  uncontrollable  source. 

This  idea  was  not  substantially  changed  by  the 
developments  taking  place  in  Europe  subsequent  to 
the  French  Revolution.  The  sovereign,  wliile  no 
longer  conceived  of  as  an  actual  person,  was  yet 

35 


CERTAINTY   AND   JUSTICE 

personified  as  an  abstracti<jn,  i.  e.,  the  state.  In 
other  words  the  place  that  had  l)een  occupied  by 
Louis  XIV  was  now  occupied  by  the  people  collec- 
tively, conceived  as  represented  in  their  national 
assemblies.  This  is  still  the  reigning  theory  save  as 
modified  by  systems  of  constitutional  limitation. 

In  the  hard  domain  of  reality,  however,  law  is 
the  resultant  of  social  life,  and  statutes  imposed  by 
any  authority,  in  conflict  with  the  settled  habits, 
ideas  or  customs  of  a  people,  are  practicably  unen- 
forcible.  The  law  in  order  to  become  a  rule  of  uni- 
versal conduct  must  first  have  been  to  a  great  extent 
a  general  custom  or  must,  at  least,  have  had  an  ideal 
existence  in  a  dominant  public  opinion. 

Advances  in  the  system  of  transportation,  the 
growth  of  the  great  unified  industries,  the  multiplica- 
tion of  books  and  periodicals  have  brought  about  a 
unity  of  thought  and  of  methods  among  civilized 
peoples.  The  American  nation  cannot  escape  going 
through  many  of  the  social  changes  now  operating 
in  England,  in  Germany,  in  France  and  elsewhere. 
These  changes  are  perhaps  not  as  numerous  as 
many  think,  but  they  are  all  in  the  direction  of  lim- 
iting the  scope  of  freedom  of  contract  and  of  indi- 
vidual liberty  as  understood  at  the  time  the  Con- 
stitution was  framed. 

Our  Constitution  was  originated  by  men  imbued 
with  the  eighteenth  century  philosophy,  which  was 

36 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

in  turn  the  offspring  of  eighteenth  century  condi- 
tions. There  is  a  radical  difference  between  those 
who  look  upon  society  as  founded  upon  certain  basic, 
absolute  principles,  from  which  proper  rules  of  con- 
duct or  law  may  at  any  time  be  deduced,  and  those 
who  regard  it  as  an  ever  changing  development  and 
adaptation. 

I  believe  the  old  deductive  system  of  political 
philosophy  to  be  quite  inadequate  to  the  solution  of 
modern  problems;  politics,  economics,  law,  cannot 
be  put  into  watertight  compartments  and  treated 
separately.  Principles  applicable  to  one  state  of 
society  may  become  inapplicable  where  there  has 
been  complete  change  of  economic  conditions,  or 
such  principles  are  of  so  vague  a  character  as  to 
have  little  real  practical  value  as  guides  to  action. 
The  laws  sufficient  for  a  small  western  community 
may  well  permit  a  freedom  on  the  part  of  the  indi- 
vidual which  in  a  crowded  cosmopolitan  city  would 
lead  to  complete  anarchy.  Principles  of  so  general 
a  character  as  to  include  all  cases  and  conditions  are 
of  little  value  as  criteria  for  determining  what  the 
actual  law  of  to-day  should  be.  The  more  all- 
embracing  they  are,  the  less  their  relation  to  actual 
life. 

Underlying  all  civilized  government,  however,  are 
two  concepts:  private  property  and  individual 
liberty.     It   is  true  that  certain  extremists  would 

37 

207909 


CERTAINTY    AND   JUSTICE 

practically  abmji^ate  both,  hut  such  abrogation  is  so 
utterly  iinpossihlc,  without  an  unthinkable  change 
in  public  opinion  and  general  social  conditions,  as 
to  make  the  question  academic. 

The  practical  difficulty  is,  however,  that  private 
property  is  a  concept,  the  content  of  which  is  in 
some  degree  shifting.  Slaves  are  no  longer  private 
property.  Private  property  in  the  Spanish  posses- 
sions included  matters  such  as  solicitors'  offices, 
slaughter  house  franchises,  etc.,  which  the  Ameri- 
can law  refuses  to  consider  as  property.  Matters 
such  as  railway  franchises,  municipal  gas  plants, 
etc.,  that  are  now  looked  upon  as  private  property, 
may  in  the  future  not  be  considered  as  falling  with- 
in that  category.  Indeed,  to-day  there  is  a  vast 
amount  of  property  over  which  the  rights  of  the  in- 
dividual are  very  much  more  restricted  than  those 
which  he  exercises  over  the  house  in  which  he  may 
live.  The  property  of  a  railroad  is  in  a  sense  pri- 
vate property,  but  private  property  subjected  to 
such  a  supervision  on  the  part  of  the  government 
that  it  is  property  in  a  very  different  sense  from  a 
man's  house,  his  horse,  or  his  carriage. 

Old  phrases  become  constantly  invested  with  new 
meaning.  The  changes  in  economic  conditions  have 
given  rise  to  a  different,  if  not  a  new,  political 
philosophy.  The  end  of  the  eighteenth  and  the  be- 
ginning of  the  nineteenth  century  saw  the  rise  of 

38 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

the  great  school  of  English  utiHtarians  who  found 
the  greatest  good  of  the  greatest  number  to  be  the 
ultimate  principle  of  conduct.  From  this  they  de- 
duced the  doctrine  of  laissez-faire,  a  doctrine  which 
attributed  to  the  state  the  role  of  mere  policeman, 
while  each  individual  was  to  be  allowed  to  develop 
according  to  the  best  of  his  ability,  and  which  was 
largely  derived  from  biological  analogies  more  fan- 
ciful and  metaphysical  than  real  or  helpful.  An 
extreme  and  logical  statement  of  this  doctrine  was 
finally  embodied  by  Herbert  Spencer  in  "The  Man 
V.  The  State,"  at  a  time  when  the  doctrine  itself  had 
done  its  work  and  was  beginning  to  be  supplanted  by 
a  different  political  philosophy.  Doubtless  this 
school  of  thought  had  been  useful  in  that  it  had 
destroyed  an  outworn  economic  system  and  had  to  a 
great  extent,  as  Napoleon  put  it,  "opened  careers  to 
talent,"  but  it  was  found  in  time  that  the  doctrine 
of  the  survival  of  the  fittest  had  its  disadvantages 
when  applied  to  mankind. 

The  liberty  which  the  utilitarian  school  hoped  to 
assure  by  curtailing  the  power  of  government  was 
quickly  threatened  by  powerful  individuals  whose 
abilities  and  predatory  instincts  enabled  them  to  ob- 
tain so  large  a  proportion  of  private  property,  es- 
pecially that  kind  which  was  developed  by  modern 
industrialism  through  the  legal  medium  of  corpora- 
tions, that  the  less  able  and  energetic  part  of  hu- 

39 


CERTAINTY   AND   JUSTICE 

manity  found  itself  threatened  with  a  serfdom  per- 
haps more  onerous  than  that  of  the  old  feudal  days. 
Liberty  tends  to  destroy  equality. 

The  race  was  menaced  with  serious  deterioration 
by  reason  of  the  work  in  factories  and  mines  of 
women  and  children.  Some  thirty  or  more  years 
ago  it  began  to  be  seen  that  the  freedom  of  contract 
between  a  great  corporation  and  the  needy  laborer, 
who  must  work  or  starve,  was  a  mere  fiction  of  a 
bygone  political  science.  It  was  a  principle  that 
had  been  useful  under  certain  conditions,  but  had 
ceased  to  have  any  constructive  value  in  new  situa- 
tions, and  governments  began  to  enact  a  series  of  re- 
formatory legislation  such  as  factory  laws,  checks 
upon  monopoly,  hygienic  regulation,  fixing  of  public 
utility  rates,  wholly  incompatible  with  the  doctrines 
of  Bentham,  Malthus,  the  elder  Mill  and  finally  of 
Spencer. 

This  latter  political  science  was  first  formulated 
in  France,  where  it  often  took  extreme  socialistic 
forms.  It  greatly  influenced  the  later  writings  of 
John  Stuart  Mill  and  through  him  and  others  the 
writings  of  the  English  economists  and  philos- 
ophers. The  orthodox  political  economy  was  seen  to 
be  working  in  a  vacuum;  it  dealt  with  abstractions 
and  not  with  realities.  The  theory  that  the  work- 
man, like  a  bale  of  cotton,  would  find  his  way  into 
the  highest  market,  where  a  penny  a  bale  or  a  shil- 

40 


WHAT  IS  THE  MATTER  WITH  THE   LAW? 

ling  a  day  more  for  the  one  or  the  other  might  be 
obtained,  was  seen  to  be  based  upon  pure  abstrac- 
tion. The  individual  man  responds  to  causes  which 
have  nothing  in  common  with  those  governing  the 
question  as  to  the  ultimate  destination  of  the  ton  of 
coal,  but  are  sentimental  rather  than  rationally 
financial,  and  thus  the  old  orthodox  political  econ- 
omy, once  thought  to  be  based  upon  the  bed-rock  of 
scientific  truth,  applicable  at  all  times  to  all  condi- 
tions, quietly  passed  into  the  realm  of  a  historic 
theory  which  had  served  its  purpose. 

Nevertheless,  these  old  theories  have  had  a 
tremendous  influence  both  upon  legislators  and  upon 
courts,  and  to  this  day  the  older  men  generally  in 
public  positions  will  be  found  to  adhere  to  the  tenets 
of  the  famous  Manchester  school.  It  is  perhaps 
as  well  that  it  should  be  so,  because,  while  law  must 
ultimately  express  the  views  of  a  dominant  public 
opinion,  each  opinion  is,  to  a  great  extent,  neutral- 
ized by  cross  currents  of  opinion,  and  unless  these 
cross  currents  are  also  to  some  extent  represented, 
there  is  danger  of  much  legislation  that  will  be  one- 
sided and  unworkable. 

In  the  United  States,  the  serious  legislative 
changes  mentioned  have  come  somewhat  later  than 
elsewhere  because  of  the  extension  of  our  territory, 
the  sparseness  of  population  compared  to  the  width 
of  our  domain,  and  the  enterprising,  active  spirit  of 

41 


CERTAINTY    AND    JUSTICE 

our  people  which  made  the  laisscc-fairc  doctrine  par- 
ticularly appropriate,  the  encroachments  of  the 
government  on  individual  autonomy  peculiarly  dis- 
tasteful. These  conditions  within  the  last  quarter  of 
a  century  have  radically  changed.  The  public  lands 
have  been  filled  up;  great  communities  have  grown 
on  what  was  once  the  buffalo  feeding  grounds;  the 
prairie  has  become  an  aggregate  of  towns  and  cities, 
and  the  simple  code  of  the  ranchman  has  been  re- 
placed by  a  series  of  municipal  ordinances  regulating 
everything  from  the  discharge  of  sewage  to  the 
beating  of  carpets. 

There  have  come  and  are  coming  vast  hordes  of 
immigrants  from  Europe,  bringing  with  them  a 
somewhat  different  mentality,  accustomed  to  coagu- 
late in  cities  and  averse  to  productive  labor  on  the 
farm.  The  general  universal  movement  from  the 
country  to  the  cities  has  been  taking  place  owing 
again  to  the  tremendous  changes  in  transportation 
facilities  and  in  business  methods.  The  great  in- 
crease in  gold  and  the  rise  in  property  values, 
generally  due  to  the  opening  up  of  the  continent 
to  agriculture  and  commerce,  have  led  to  the  forma- 
tion of  enormous  aggregates  of  capital,  to  a  great 
extent  controlling  the  markets  and  breaking  down 
the  old  system  of  competition.  Competition  as  a 
natural  and  beneficial  regulator  of  prices  has  suflfered 
a  severe  check.     It  is  found  practically  impossible 

43 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

to  compete  with  the  concern  deahng  with  a  hundred 
or  more  milHons  of  dollars  and  able  to  depress  a 
market  at  will  by  selling  under  cost. 

The  railroads  have  been  put  under  government 
supervision  in  order  that  the  great  arteries  of  com- 
merce may  be  kept  free,  on  equal  terms  to  all. 
Some  further  regulation  of  the  capitalistic  monop- 
olies dealing  with  the  necessaries  of  life  are  now 
contemplated.  The  old  monopoly  laws,  long  fallen 
into  desuetude,  have  been  in  the  last  ten  years  put 
again  into  active  operation  with  a  considerable  dis- 
ruption to  business  and  doubtful  corresponding  ben- 
efit to  the  public.  Additional  restraints  looking  to 
the  moralization  of  competitive  methods  by  the 
elimination  of  unfair  practices  are  proposed  and 
should,  I  believe,  prove  of  advantage. 

In  this  hurly-burly  of  American  economic  and 
social  life,  it  is  evident  that  there  is  need  for  an 
intelligent  programme  of  reformative  and  regulative 
legislation  which  shall  restrain  abuse  but  maintain 
the  incentive  to  individual  effort.  Such  legislation 
has  to  a  great  extent  been  enacted  in  France,  in 
Germany  and  in  England.  In  America  we  have 
made  a  beginning.  We  have  factory  laws,  limitation 
upon  hours  of  labor  in  certain  classes  of  work, 
workmen's  compensation  acts  and  various  laws  at- 
tempting to  regulate  monopoly.  Yet  we  in  the 
United  States  are  met  with  an  apparent  impediment 

43 


CERTAINTY    AND   JUSTICE 

not  found  elsewhere.  Both  our  federal  and  State 
constilutions  have  enacted  general  restrictions  upon 
the  power  of  the  legislatures  and  in  favor  of  the 
liberty  of  the  individual.  As  to  the  State  constitu- 
tions, owing  to  the  facility  with  which  they  may  be 
amended,  these  restrictions  will  not  for  any  great 
length  of  time  interfere  with  the  enactment  into  law 
of  generally  desired  social  reform. 

With  the  Constitution  of  the  United  States,  how- 
ever, the  question  is  dififerent.  The  Constitution  is 
very  difficult  of  amendment.  It  has  really  never 
been  amended,  save  in  the  present  instance  of  the 
Income  Tax,  except  as  the  result  of  the  civil 
war;  the  first  ten  amendments  were  practically 
synchronous  with  the  Constitution,  and  the 
eleventh  amendment,  the  result  of  the  decision 
of  the  Supreme  Court  in  Chisliolm  v.  Georgia, 
came  about  in  response  to  a  unanimous  popular 
sentiment  that  the  States  should  not  be  suable  at  the 
instance  of  an  individual.  In  that  case,  however,  the 
popular  sentiment  was  less  enlightened  and  far- 
seeing  than  the  view  of  the  court.  That  eminent 
authority  and  thinker,  Professor  Dicey,  says  of 
amending  the  Constitution  of  the  United  States : 

"The  sovereign  of  the  United  States  has  been 
roused  to  serious  action  but  once  during  the  course 
of  ninety  years.  It  needed  the  thunder  of  the  civil 
war  to  break  his   repose  and   it  may  be  doubted 

44 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

whether  anything  short  of  impending  revolution 
will  ever  again  rouse  him  to  activity.  But  a  Mon- 
arch who  slumbers  for  years  is  like  a  Monarch  who 
does  not  exist.  A  federal  constitution  is  capable 
of  change  but  for  all  that  a  federal  constitution 
is  apt  to  be  unchangeable." 

Again  in  the  United  States  we  have,  owing  to 
our  written  Constitution  and  the  consequent  neces- 
sity for  interpretation,  greatly  developed  the  polit- 
ical function  of  the  courts.  Our  courts  have  come 
to  exercise  a  real  control  over  legislative  action  and 
may,  through  their  power  of  interpreting  the  Con- 
stitution either  narrowly  or  broadly,  determine 
whether  or  not  social  reform  legislation  shall  be 
enacted  into  valid  law. 

It  is  for  this  reason  that  the  question  of  the 
attitude  of  the  courts  towards  industrial  liberty  and 
social  reform  generally  has  become  one  of  the  burn- 
ing questions  of  the  day.  The  restrictions  upon  the 
State  legislatures  and  Congress  in  enacting  these  re- 
forms are  to  be  found  mainly  in  the  clause  of  the 
Fifth  Amendment,  prohibiting  Congress  from  de- 
priving any  person  of  life,  liberty  or  property  with- 
out due  process  of  law  and  the  similar  restrictions 
imposed  by  the  Fourteenth  Amendment  upon  the 
States.  These  phrases  are  broad  and  general.  I 
do  not  think  it  the  duty  of  the  court  to  interpret 
them  necessarily  as  they  would  probably  have  been 

45 


CERTAINTY   AND   JUSTICE 

interpreted  at  the  time  tlicy  were  enacted.  A  court 
should  not  only  examine  the  circumstances  and  the 
conditions  under  which  a  law  was  passed  or  a  con- 
stitution adopted,  but  should  go  further  and  give 
some  attention  to  the  changing  conditions  which 
could  not  have  been  foreseen  at  the  time.  As  a 
great  French  jurist  has  said,  general  rules  should 
be  interpreted  in  a  "sens  evoUitif."  This  view  has 
been  recognized  by  the  Supreme  Court  of  the  United 
States,  for  we  find  in  the  well-known  case  of  Holden 
V.  Hardy  (169  U.  S.  366,  at  pp.  385-6)  this 
philosophical  and,  it  is  submitted,  essentially  just 
observation  of  Mr.  Justice  Brown : 

"An  examination  of  both  these  classes  of  cases 
under  the  Fourteenth  Amendment  will  demonstrate 
that,  in  passing  upon  the  validity  of  State  legisla- 
tion under  that  amendment,  this  court  has  not  failed 
to  recognize  the  fact  that  the  law  is,  to  a  certain 
extent,  a  progressive  science;  that  in  some  of  the 
states  methods  of  procedure,  zvhich  at  the  time  the 
constitution  was  adopted  ivere  deemed  essential  to 
the  protection  and  safety  of  the  people,  or  to  the 
liberty  of  the  citizen,  have  been  found  to  he  no 
longer  necessary;  that  restrictions  which  had  for- 
merly been  laid  upon  the  conduct  of  individuals,  or 
of  classes  of  individuals  had  proved  detrimental  to 
their  interests;  while  upon  the  other  hand,  certain 
other  classes  of  persons,  particularly  those  engaged 
in  dangerous  or  unhealthy  employments,  have  been 
found  to  be  in  need  of  additional  protection." 

46 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

I  feel  that  it  may  be  necessary  when  the  court 
is  deahng"  with  constitutional  questions  to  take  a 
broader  view  of  the  doctrine  of  Stare  Decisis  than 
should  be  done  in  ordinary  cases.  In  dealing-  with 
ordinary  legal  rules,  changeable  at  the  will  of  the 
legislator,  the  necessity  of  a  considerable  degree  of 
certainty  for  the  protection  of  business  and  prop- 
erty is  obvious,  but  that  the  rule  may  be  carried 
too  far  we  have  elsewhere  shown. 

Nothing  can  better  illustrate  than  the  history  of 
the  famous  Sherman  Anti-Trust  Law  the  difificulties 
of  interpretation.  This  short  act,  simple  in  its  lan- 
guage, containing  very  few  sections,  has  given  rise 
to  twenty  years  of  perplexity  in  and  out  of  court  and 
been  a  threatening  factor  in  business  progress  and 
development.  The  court  has  been  attacked  both 
by  reactionaries  and  radicals  as  having  interpreted 
the  statute  too  broadly  or  too  narrowly  and  there 
is  a  general,  widespread  opinion  that  the  court  in 
the  recent  Standard  Oil  case  ^  reversed  its  earlier 
rulings.  I  will  examine,  in  a  succeeding  chapter, 
the  attitude  of  the  Supreme  Court  on  this  question 
somewhat  in  detail. 

In  England  and  in  Continental  Europe  for  the 
past  fifteen  years  a  body  of  legislation  having  to  do 
with  accidents  to  workmen  in  various  employments 
has  been  in  existence.     The  prevailing  theory  there 

*22i  U.  S.  Rep.,  I. 
47 


CERTAINTY   AND   JUSTICE 

as  here  was  that  of  freedom  of  contract.  The  em- 
ployee who  desired  to  contract  with  an  ein[)loyer  did 
so  at  his  own  risk.  He  was  subject  in  case  of 
accident  to  three  rules: 

(a)  Assumption  of  risk, 

(b)  Contributory  negligence, 

(c)  The  fellow-servant  rule. 

These  three  rules  did  not  contain  in  themselves  any- 
thing particularly  arbitrary  or  anomalous.  They 
were  worked  out  by  the  English  court  on  the  analogy 
of  rules  of  law  governing  other  legal  relations.^ 

It  is  absurd  to  say  that  these  doctrines  were  due 
to  class  bias  on  the  part  of  the  judges.  It  might, 
however,  be  a  fair  analysis  of  the  situation  to  con- 
sider them  as  having  followed  naturally  enough 
from  the  dominant  political  philosophy  of  the  time 
which  governed  to  a  great  extent  the  prevailing 
thought  both  in  and  out  of  courts.  The  employer 
and  the  employee  were  assumed  to  .meet  upon  a 
field  of  equality  and  to  make  such  contracts  as  their 
respective  interests  dictated.  If  there  was  special 
risk  in  the  employment,  the  employee  need  not  as- 
sume it  but  might  seek  employment  elsewhere.  He 
was  in  theory  master  of  his  labor  and  could  sell 

'See  an  admirable  article  in  Columbia  Law  Review  of 
February,  191 1,  by  Professor  Burdick. 

48 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

it  where  he  chose.  If  he  had  himself  so  contributed 
to  the  accident  that  without  his  nej^hgence  it  would 
not  have  happened,  he  had  no  right  to  complain,  as 
he  should  have  exercised  due  and  proper  care  in 
order  to  hold  his  employer  liable.  Nor  was  he  sup- 
posed to  be  unjustly  treated  if  injured  by  a  fellow- 
employee.  The  fellow-employee  would  himself  be 
liable  and  this  danger  of  injury  by  a  fellow  servant 
the  workman  was  assumed  to  have  taken  upon 
himself,  and  it  was  thought  that  the  employer 
could  be  under  no  duty  to  insure  against  such 
danger. 

But  with  the  development  of  the  factory  system, 
the  growth  of  dangerous  trades,  the  multiplication 
of  machinery,  and  the  growing  economic  inequality 
between  classes,  it  would  seem  that  the  employer 
and  the  employee  were  not  upon  a  basis  of  equality; 
that  the  workman  who  depended  for  his  daily  bread 
upon  his  daily  work  must  assume  practically  any 
risk,  and  that  in  the  multiplication  and  complexity 
of  machinery,  a  certain  number  of  accidents  were 
practically  unavoidable.  It  was  felt  that  these  ac- 
cidents should  be  at  the  risk  of  the  business  gener- 
ally. The  theory  of  workmen's  compensation  laws 
is  well  stated  by  Judge  Werner  in  the  opinion  in 
Ives  V.  South  Buffalo  Ry.  Co.  (201  N.  Y.  271),  in 
declaring  unconstitutional  the  workmen's  compensa- 
tion law  of  that  state. 

49 


CERTAINTY   AND   JUSTICE 

"There  can  i)e  no  doubt  as  to  the  theory  of  this 
law.  It  is  based  upon  the  proposition  that  the  in- 
herent risks  of  an  employment  should  in  justice  be 
placed  upon  the  shoulders  of  an  employer,  who  can 
protect  himself  against  any  loss  by  insurance  and 
by  such  an  addition  to  the  price  of  his  wares  as  to 
cast  the  burden  ultimately  upon  the  consumer;  that 
indemnity  to  an  injured  employee  should  be  as 
much  a  charge  upon  the  business  as  the  cost  of  re- 
placing or  repairing  disabled  or  defective  machin- 
ery, appliances  or  tools ;  that,  under  our  present 
system,  the  loss  falls  immediately  upon  the  em- 
ployee who  is  almost  invariably  unable  to  bear  it, 
and  ultimately  upon  the  community  which  is  taxed 
for  the  support  of  the  indigent ;  and  that  our  pres- 
ent system  is  uncertain,  unscientific  and  wasteful, 
and  fosters  a  spirit  of  antagonism  between  employer 
and  employee  which  it  is  to  the  interest  of  the 
state  to  remove.  We  have  already  admitted  the 
strength  of  this  appeal  to  a  recognized  and  widely 
prevalent  sentiment,  but  we  think  it  is  an  appeal 
which  must  be  made  to  the  people  and  not  to  the 
courts." 

In  the  State  of  New  York  it  is  true  that  the  peo- 
ple may,  without  great  difficulty,  so  amend  their  con- 
stitution as  to  remove  this  inhibition  and  so  modify 
the  due  process  of  law  clause  of  the  constitution  as 
not  to  interfere  with  the  enactment  of  laws  for  work- 
men's compensation.  Several  such  amendments  are 
now  pending.     But  as  far  as  federal  laws  are  con- 

50 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

cerned  governing  the  employees  in  the  great  inter- 
state enterprises  the  situation  is  a  different  one  be- 
cause of  the  appHcabihty  of  the  Federal  Constitution. 
Therefore,  the  decision  of  the  Supreme  Court  of 
the  United  States  in  the  so-called  Employers  Lia- 
bility cases  was  awaited  with  great  interest.^  The 
law  there  sustained  as  constitutional  differs  in 
theory  from  the  workmen's  compensation  acts.  It 
does  no  more  than  abolish  the  fellow  servant  rule, 
the  doctrine  of  the  assumption  of  risk  and  modify 
the  common  law  rule  of  contributory  negligence  so 
that  the  damage  to  the  workman  in  the  case  of  his 
negligence,  unless  it  were  wanton,  is  proportioned 
to  the  degree  in  which  he  contributed  to  the  ac- 
cident. The  employer  is  not  forced  to  bear  the  loss 
wholly  independent  of  his  own  fault,  and  thus  be- 
come an  insurer  pure  and  simple.  There  is  a  rad- 
ical difference  between  the  two  systems. 

The  New  York  Court  of  Appeals  has  held  that 
to  cast  this  burden  of  insurance  upon  the  employer 
was  practically  to  deprive  him  of  property  without 
due  process  of  law,  as  no  legal  liability  could  be 
created  in  the  absence  of  contract  unless  there 
existed  some  fault,  and  that  to  create  such  a  one- 
sided obligation  was  practically  pro  tanto  expro- 
priatory.  There  is  consefjuently  no  necessary  con- 
flict between  the  decisions  of  the  Supreme  Court  of 
'  Second  Employers'  Liability  Cases,  223  U.  S.,  i. 
51 


CERTAINTY   AND   JUSTICE 

the  United  States  and  that  of  tlic  State  of  New 
York. 

It  is  probable,  however,  that  in  the  near  future  a 
workmen's  compensation  act  proper  will  come  be- 
fore the  Supreme  Court,  in  which  event  it  is  (juite 
possible  that  it  may  reach  a  decision  contrary  to 
that  arrived  at  by  the  New  York  Court  of  Appeals 
and  in  conformity  with  that  reached  by  the  courts 
in  the  State  of  Iowa,  the  State  of  Washington,  and 
in  some  of  the  other  States.  The  views  of  the 
Court  of  Appeals,  if  unsound,  seem  to  me,  attack- 
able on  economic  rather  than  merely  legal  grounds. 
If  the  court  had  realized  that  the  new  charge  was 
one  on  the  business  as  such,  analogous  to  statutory 
safety  device  requirements,  and  consequently  shift- 
able  to  the  consumer,  the  conclusion  that  it  con- 
stituted a  taking  of  property  rather  than  a  regula- 
tion within  the  police  power,  might  not  have  fol- 
lowed. 

We  must  also  remember  that  the  Court  of  Ap- 
peals was  interpreting  the  same  phrase  both  in  the 
State  constitution  and  in  the  Constitution  of  the 
United  States,  and  that  while  a  constitutional  amend- 
ment could  obviate  the  consequences  of  its  decision 
as  regards  the  State  constitution  its  ruling  as  to  the 
due  process  clause  in  the  Constitution  of  the  United 
States  would  remain  unaffected.  Unfortunately,  by 
reason  of  our  rules  as  to  appeal,  no  appeal  can  be 

52 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

taken  to  the  Supreme  Court  of  the  United  States 
from  a  ruling  of  a  State  court  sustaining  the  con- 
stitutionality of  a  law,  so  that  it  is  impossible  to 
know  when  this  question  will  be  tested.  If  the 
Supreme  Court  of  the  United  States  should  hold 
these  workmen's  compensation  acts  unconstitutional 
the  nation  would  find  itself  unable,  save  through 
the  process  of  amendment,  to  enact  a  generally 
demanded  reform  and  one  which  has  been  in 
force  in  highly  civilized  nations  for  some  years 
past.  The  Supreme  Court  may  see  its  way  clear 
to  the  avoidance  of  such  a  result  by  interpreting 
the  general  phrase  "property  and  due  process  of 
law"  in  view  of  modern  economic  conditions  and 
treat  it  in  the  same  broad  spirit  as  they  have  done 
in  the  cases  afifecting  the  constitutional  right  to 
jury  trial  hereinafter  examined. 

Other  instances  of  the  attitude  of  the  Supreme 
Court  in  regard  to  labor  regulation  may  be  found 
in  such  cases  as  Lochncr  v.  New  York,^  in  which  it 
was  held  by  a  divided  court  (five  to  four)  that  the 
New  York  law  restricting  the  hours  of  work  in  a 
bakeshop  to  ten  hours  a  day  was  unconstitutional 
as  unreasonably  interfering  with  that  liberty  of  con- 
tract guaranteed  by  the  Constitution  in  the  right  to 
pursue  life,  liberty  and  happiness.  As  Mr.  Justice 
Peckham,  writing  for  the  majority  of  the  court, 
said  :  '  198  U.  S.,  45- 

53 


CERTAINTY   AND   JUSTICE 

"It  is  manifest  to  us  that  tlic  limitation  of  the 
hours  r)f  lahf)r  as  provided  for  in  this  section  of 
the  statute  under  which  the  indictment  was  found, 
and  the  plaintiff  in  error  convicted,  has  no  such  di- 
rect relation  to  and  no  such  substantial  effect  upon 
the  health  of  the  employee  as  to  justify  us  in  re- 
garding the  section  as  really  a  health  law.  It  seems 
to  us  that  the  real  object  and  purpose  were  simply 
to  regulate  the  hours  of  labor  between  the  master 
and  his  employee  (all  being  men.  siii  juris),  in  a  pri- 
vate business,  not  dangerous  in  any  degree  to  morals 
or  in  any  real  and  substantial  degree,  to  the  health 
of  the  employees.  Under  such  circumstances  the 
freedom  of  master  and  employee  to  contract  with 
each  other  in  relation  to  their  employment,  and  in 
defining  the  same,  cannot  be  prohibited  or  inter- 
fered with,  without  violating  the  Federal  Consti- 
tution." 

This  decision  has  been  criticized  as  interfering 
with  the  power  of  the  States  to  enact  needed  social 
reforms.  It  was  strongly  dissented  from  in  an  able 
opinion  by  Justices  Harlan  and  Holmes,  argu- 
ing that  this  fell  well  within  the  police  power  of 
the  State  which  could  enact  laws  for  the  public 
health  and  the  general  welfare,  although  they  might 
in  themselves  interfere  with  liberty  of  contract.  As 
Mr.  Justice  Harlan  well  says : 

"We  are  reminded  by  counsel  that  it  is  the  sol- 
emn duty  of  the  courts  in  cases  before  them  to 

54 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

guard  the  constitutional  rights  of  the  citizen  against 
merely  arbitrary  power.  That  is  unquestionably 
true.  But  it  is  equally  true — indeed,  the  public  in- 
terests imperatively  demand — that  legislative  enact- 
ments should  be  recognized  and  enforced  by  the 
courts  as  embodying  the  will  of  the  people,  unless 
they  are  plainly  and  palpably,  beyond  all  question, 
in  violation  of  fundamental  law  of  the  constitution." 


And  Mr.  Justice  Holmes,  putting  the  matter  in 
startlingly  concrete  fashion,  says: 

"This  case  is  decided  upon  an  economic  theory 
which  a  large  part  of  the  country  does  not  enter- 
tain. If  it  were  a  question  whether  I  agreed  with 
that  theory,  I  should  desire  to  study  it  further  and 
long  before  making  up  my  mind.  But  I  do  not  con- 
ceive that  to  be  my  duty,  because  I  strongly  believe 
that  my  agreement  or  disagreement  has  nothing  to 
do  with  the  right  of  a  majority  to  embody  their 
opinions  in  law.  It  is  settled  by  various  decisions 
of  this  court  that  State  constitutions  and  State  laws 
may  regulate  life  in  many  ways  which  we  as  legis- 
lators might  think  as  injudicious  or  if  you  like  as 
t3'rannical  as  this,  and  which  equally  witn  this  in- 
terfere with  the  liberty  to  contract.  *  *  *  But  a 
constitution  is  not  intended  to  embody  a  ])articular 
economic  theory,  whether  of  paternalism  and  the 
organic  relation  of  the  citizens  to  the  State  or  of 
laissc:o-fairc.  It  is  made  for  people  of  fundamen- 
tally differing  views,  and  the  accident  of  our  finding 
certain  opinions  natural  and  familiar  or  novel  and 

55 


CERTAINTY   AND   JUSTICE 

even  shocking  ought  not  to  conclude  our  judgment 
upon  the  question  whether  statutes  embodying  them 
conflict  with  the  Constitution  of  the  United  States." 

Here  again  we  have  the  eternal  conflict  between 
justice,  that  is  to  say  the  general  sense  of  what  is 
thought  to  be  right  in  a  community,  and  the  neces- 
sity for  certainty  in  the  law.  There  are  some 
dynamic  forces  ever  working  for  change,  and  be- 
tween such  forces  and  those  which  tend  to  stability 
and  conservatism  there  must  be  endless  conflict. 
The  result  is  in  compromise.  If  one  or  the  other 
of  these  forces  becomes  dominant  we  have  either 
anarchy  or  stagnation ;  a  Chinese  system  or  troubled 
years  of  revolution.  Social,  like  philosophic  truth, 
is  ever  in  the  making,  and  modern  states  are  ever 
moving  toward  new  adjustments  and  more  adequate 
solutions. 

It  would  be  unfortunate  if  the  courts  by  a  narrow 
interpretation  of  general  constitutional  clauses 
should  seem  effectually  to  delay  widely  desired  re- 
forms. If  this  is  done  there  is  grave  danger  that 
our  constitutional  system,  which  has  worked  ad- 
mirably so  far  and  which  has  been  the  result  of 
profound  genius  on  the  part  of  the  American  people, 
will  be  disrupted. 

It  is,  nevertheless,  I  think,  of  capital  importance 
that  the  courts  should  retain  the  power  to  set  aside 
acts  of  the  legislature.    The  true  test  of  good  gov- 

56 


WHAT  IS  THE  MATTER  WITH  THE  LAW? 

ernment  is  whether  it  adequately  protects  the  rights 
of  minorities.  This  has  been  well  instanced  in  other 
lands  by  religious  persecutions,  both  ancient  and 
modern,  whenever  events  have  placed  the  minority 
at  the  mercy  of  the  majority,  leading  to  cruel  re- 
pression of  opinion,  greatly  retarding  human  prog- 
ress and  development.  No  better  test  of  freedDui 
exists  than  the  legal  protection  afforded  to  minori- 
ties. Such  protection  is  of  modern  growth  and  con- 
fined to  small  areas.  It  is  impossible  to  protect  the 
rights  of  minorities  unless  there  be  courts  to  which 
an  appeal  may  be  taken  from  the  doubtful  legisla- 
tion of  the  moment. 

Many  of  the  State  courts  have,  I  think,  been  over 
conservative  and  are  largely  responsible  for  the  feel- 
ing that  has  been  created  against  the  judiciary  as 
the  representatives  of  capitalistic  and  conservative 
forces.  But  the  Supreme  Court  of  the  United 
States,  with  few  exceptions,  has  been  liberal,  recog- 
nizing that  re-adjustment  is  not  necessarily  revolu- 
tion. It  has  recognized  since  the  decision  of  the 
Dred  Scott  case  that  great  moral  and  economic 
forces  cannot  be  overcome  by  the  mere  fiat  of  a 
court,  however  dignified  its  functions  or  however 
eminent  its  personnel. 

The  changes  contemplated  in  our  law  by  present 
public  opinion  are  not  in  any  way  subversive  of  our 
system.    They  are  compatible  with  the  highest  civil- 

57 


CERTAINTY   AND   JUSTICE 

ization  and  a  j^reat  degree  of  personal  liberty,  as 
English,  French  and  German  experience  have  shown. 
I  firmly  believe  that  the  benefits  of  our  system  may 
be  retained  by  relaxing  somewhat  the  rigidity  of 
the  rule  of  Stare  Decisis  in  the  settlement  of  con- 
stitutional questions  and  by  fully  recognizing,  as 
many  of  our  judges  have  thought  should  be  done, 
the  modified  conditions  to  which  the  constitutional 
provisions  must  now  apply.  Fortunately  the  fed- 
eral Constitution  deals  in  broad  and  general  propo- 
sitions and  there  are  few  if  any  social  reforms  of 
so  radical  a  character  that  any  clause  of  the  Con- 
stitution may  be  found  which  expressly  and  in  terms 
inhibits  them. 

Liberty  and  property  may  well  be  preserved,  al- 
though some  of  the  incidents  which  went  with  them 
in  the  past  may  be  no  longer  indispensable  to  their 
preservation.  As  illustrative  of  this  we  will  in  the 
next  chapter  sketch  the  judicial  views  of  jury  trial 
as  a  method  once  considered  an  essential  bulwark 
of  liberty,  but  now  become  merely  a  historic, 
though  still  useful,  incident  in  the  preservation  of 
freedom. 


58 


IV 


JURY    TRIAL    AS    AN    INSTANCE    OF    CONSTI- 
TUTIONAL   DEVELOPMENT 

''  I  ''HIS  general  tendency,  by  which  the  Constitu- 
•*■  tion  is  being  constantly  brought  by  the 
Supreme  Court  en  rapport  with  existing  ideas,  is 
no  where,  I  believe,  so  well  instanced  as  in  the  evolu- 
tion of  jury  trial  from  a  fundamental  right  into  a 
mere  method  of  procedure. 

The  proposition  which,  I  believe,  can  be  estab- 
lished by  the  examination  of  the  cases  on  this  sub- 
ject in  the  Supreme  Court  of  the  United  States,  is 
this: 

A  right  secured  to  the  people  by  the  Constitution 
in  most  positive  language,  treated  by  the  Fathers, 
by  the  original  State  constitutions,  and  by 
the  public  opinion  of  the  time  as  a  sacred  and 
fundamental  right,  has  in  the  course  of  a  hundred 
years  by  judicial  decision  been  relegated  to  the  rank 
of  a  mere  method  of  procedure. 

This  important  change  has  been  accomplished 
without  any  formal  amendment  to  the  Constitution, 

59 


CERTAINTY   AND  JUSTICE 

hut  wholly  under  the  guise  of  judicial  interpreta- 
tion. It  has  not  hcen  brought  about  on  any  theory 
that  the  language  of  the  Constitution  was  ambigu- 
ous, but  because  the  court  considered  that,  law  be- 
ing a  "progressive  science,"  the  opinions  and  con- 
ditions of  to-day  should  be  considered  an  im- 
portant element  in  interpreting  the  intention  of  the 
framers. 

In  stating  this  proposition,  I  do  not  wish  to  seem 
in  any  way  to  criticize  that  great  tribunal.  What  I 
believe  we  should  do  is  to  examine  quite  dispassion- 
ately the  process  by  which  our  constitutional  law 
is  developed  and  expanded,  just  as  the  chemist  an- 
alyzes the  properties  of  the  substance  in  his  crucible. 
He  does  so,  or  should  do  so  if  he  hopes  to  succeed, 
without  prejudice,  passion  or  preconceived  theory, 
solely  with  a  view  to  ascertaining  the  chemical  re- 
sultant of  his  combinations. 

As  Dr.  Johnson  says :  "Let  us  rid  ourselves  of 
cant";  let  us  not  do  one  thing  and  say  another; 
let  us  not  act  upon  the  theory  that  the  Constitution 
is  as  unchangeable  as  the  law  of  the  Medes  and  the 
Persians,  when  it  is  being  constantly  changed  by 
judicial  interpretation,  in  many  respects  quite  as 
effectually  and  much  more  easily  than  it  could  be 
by  amendment  in  the  prescribed  form. 

Nowhere  has  this  been  more  clearly  stated  than 
in  the  utterances  of  the  court  itself;  in  speaking  of 

60 


CONSTITUTIONAL   DEVELOPMENT 

the  opinion  in  Murray's  Lessee  v.  Hoboken,  Mr. 
Justice  Matthews  said  } 

"The  point  in  the  case  cited  rose  in  reference 
to  a  summary  proceeding,  questioned  on  that  ac- 
count as  not  due  process  of  law.  The  answer  was : 
however  exceptional  it  may  be  as  tested  by  defini- 
tions and  principles  of  ordinary  procedure,  never- 
theless, this,  in  substance,  has  been  immemorially 
the  actual  law  of  the  land,  and,  therefore,  is  due 
process  of  law.  But  to  hold  that  such  a  charac- 
teristic is  essential  to  due  process  of  law,  would  be 
to  deny  every  quality  of  the  law  but  its  ajj^e,  and  to 
render  it  incapable  of  progress  or  improvement. 
It  would  be  to  stamp  upon  our  jurisprudence  the 
nncJiangeableness  attributed  to  the  laws  of  the 
Medes  and  Persians." 

That  the  law  must  change  with  the  development 
of  civilization  is  plain ;  the  doubt  arises  as  to  how 
far  fundamental  institutions  should  be  modified  or 
abrogated  by  the  courts  rather  than  in  the  constitu- 
tionally prescribed  way. 

That  such  a  method  of  virtual  amendment  by 
judicial  interpretation  has  been  found,  rellecls  credit 
upon  the  political  ability  of  our  people.  Loose 
thinking  has  generally  been  characteristic  of 
English  and  American  lawyers;  while  they  have 
usually  possessed  sound  common  sense  and  enlight- 

^ Huriado  v.  Calif orma,  no  U.  S.,  516. 
61 


CERTAINTY   AND   JUSTICE 

ened  views  of  justice,  they  have  proceeded  with- 
out much  concern  about  le^al  theory  or  care- 
ful analysis  of  what  was  really  taking  place  in 
the  domain  of  legal  development.  Hence,  vast 
changes  have  been  brought  about  in  the  com- 
mon law  while  the  bar  was  still  insisting  that 
the  law,  as  it  was  in  the  time  of  Henry  II.  or 
Edward  I.,  had  not  suffered  material  modifica- 
tion. 

Fiction  is  necessary  to  progress,  so  deep  rooted 
is  the  natural  aversion  of  man  to  change.  Nor  is 
its  utility  confined  to  primitive  law  as  Sir  Henry 
Maine  seems  to  indicate;  rather  does  it  seem  to  be 
an  ingrained  mental  tendency. 

"The  successful  achievement  of  innovation  with- 
out revolution  depends  mainly  upon  an  artifice  which 
derives  its  vitality  from  one  of  the  most  deep-seated 
tendencies  of  the  human  mind  and  which  has  un- 
questionably been  one  of  the  chief  agencies  in  for- 
warding social  progress.  I  refer  to  the  artifice  of 
'legal  fiction'  as  shown  in  the  pretense  that  the 
novelty  of  belief  or  practice  just  inaugurated  has 
its  warrant  in  time-honored  precedent.  *  *  * 
It  is  this  which  enables  changes  to  be  made  'con- 
stitutionally' or  in  accordance  with  a  system  of  ethics 
framed  in  an  age  when  the  changes  in  question 
could  not  possibly  have  been  contemplated  or  pro- 
vided for."  (Fiske,  Cosmic  Philosophy,  Vol.  II., 
pp.  279-80.) 

62 


CONSTITUTIONAL   DEVELOPMENT 

The  origin  of  the  jury  was  long  a  much  mooted 
question,  but  the  researches  of  two  great  historians 
of  the  Enghsh  law  seem  to  have  hnally  laid  the 
question  at  rest. 

Messrs.  Pollock  and  Maitland  in  their  epoch  mak- 
ing book  on  the  history  of  the  English  law  tell  us 
that: 

"The  English  jury  has  been  so  highly  prized  by 
Englishmen,  so  often  copied  by  foreigners,  that  its, 
origin  has  been  sought  in  many  different  directions.) 
At  the  present  day,  however,  there  can  be  little 
doubt  as  to  the  quarter  to  which  we  ought  to  look. 
We  must  look  to  the  Frankish  inqnisitio,  the  pre- 
rogative right  of  the  Frankish  kings," 

As  the  Frankish  Empire  broke  up,  the  Norman 
Dukes,  modeling  their  smaller  domain  upon  that  of 
the  great  Empire  of  Charlemagne,  retained  the  in- 
qtiisitio,  but  there  is  an  intervening  period  during 
which  we  know  little  of  the  jury.  As  the  same 
authors  say,  speaking  of  that  time : 

"Then  deep  darkness  settles  down.  When  it  lifts 
we  see  in  the  new  states  that  iiave  formed  them- 
selves no  central  power  capable  of  wielding  the  old 
prerogative,  for  a  long  time  to  come;  the  sworn 
inquest  of  neighbors  will  not  be  an  utterly  unknown 
thing  in  France ;  it  will  only  be  finally  overwhelmed 
by  the  reception  of  the  Roman  canonical  procedure. 
Even  in  Germany  it  will  appear  from  time  to  time. 


CERTAINTY   AND   JUSTICE 

yet  on  the  whole  we  may  say  that  hut  for  tlie 
coiKjuest  of  ICngland  it  would  have  perished  and 
lonj^  ago  have  heconie  a  matter  for  the  an- 
tiquary." 

"Such  is  now  the  prevailing  opinion  and  it  has 
triumphed  in  this  country  over  the  natural  disin- 
clination of  Englishmen  to  admit  that  this  palladium 
of  our  liberties  is  in  its  origin  not  English  but 
Frankish,  not  popular  but  royal." 

The  petit  jury  in  something  like  its  present  form 
as  well  as  the  accusing  or  grand  jury,  became  part 
of  the  ordinary  mechanism  of  justice  apparently 
about  the  reign  of  Henry  II.  (i  154-1189)  and  they 
both  appear,  in  something  like  their  final  form,  about 
the  middle  of  the  twelfth  century. 

The  jury  while  thus  an  ancient  institution  in 
Europe  became  peculiar  to  England,  owing  to  a 
long  train  of  historic  causes  which  I  do  not  now 
purpose  to  trace.  It  was  regarded  as  one  of  the 
most  important  of  our  institutions  at  the  time  of 
the  adoption  of  the  National  Constitution  and  was 
guaranteed  by  the  constitutions  of  every  one  of  the 
I    original  States. 

The  views  entertained  of  the  Grand  Jury  in  this 

country  are  well  set  out  by  IVIr.  Justice  Field  in  a 

charge  to  a  grand  jury  quoted  with  approval  by 

that  great  judge,  Mr.  Justice  Miller,  in  the  case  of 

I  Ex  Parte  Bain  (121  U.  S.,  i) : 

64 


CONSTITUTIONAL   DEVELOPMENT 

"  'The  institution  of  the  grand  jury,'  he  says  'is 
of  very  ancient  origin  in  the  history  of  England — it 
goes  back  many  centuries.  For  a  long  period  its 
powers  were  not  clearly  defined ;  and  it  would  seem 
from  the  account  of  commentators  on  the  laws  of 
that  country,  that  it  was  at  first  a  body  which  not 
only  accused,  but  which  also  tried,  public  offenders. 
However  this  may  have  been  in  its  origin,  it  was 
at  the  time  of  the  settlement  of  this  country  an  in- 
forming and  accusing  tribunal  only,  without  whose 
previous  action  no  person  charged  with  a  felony 
could,  except  in  certain  special  cases,  be  put  upon 
his  trial.  And  in  the  struggles  which  at  times  arose 
in  England  between  the  powers  of  a  king  and  the 
rights  of  the  subject,  it  often  stood  as  a  barrier 
against  persecution  in  his  name ;  until  at  length,  it 
came  to  be  regarded  as  an  institution  by  which  the 
subject  was  rendered  secure  against  oppression  from 
unfounded  prosecutions  of  the  crown.  In  this 
country,  from  the  popular  character  of  our  insti- 
tutions, there  has  seldom  been  any  contest  between 
the  government  and  the  citizen  which  required  the 
existence  of  the  grand  jury  as  a  protection  against 
oppressive  action  of  the  government.  Yet.  the  in- 
stitution was  adopted  in  this  country,  and  is  con- 
tinued from  considerations  similar  U)  those  which 
give  to  it  its  chief  value  in  England,  and  is  designed 
as  a  means,  not  only  of  bringing  to  trial  persons  ac- 
cused of  public  offences  upon  just  grounds,  but 
also  as  a  means  of  protecting  the  citizen  against  un- 
founded accusations,  whetlier  it  comes  from  govern- 
ment, or  be  prompted  by  partisan  passion  or  private 

65 


CERTAINTY   AND   JUSTICE 

enmity.  No  person  shall  be  recjuired,  according  to 
the  fundamental  law  of  the  country,  except  in  the 
cases  mentioned,  to  answer  for  any  of  the  higher 
crimes  unless  this  body,  consisting  of  not  less  than 
sixteen  nor  more  than  twenty-three  good  and  law- 
ful men,  selected  from  the  body  of  the  district  shall 
declare,  upon  careful  deliberation,  under  the  solem- 
nity of  an  oath,  that  there  is  good  reason  for  his 
accusation  and  trial.'  "  (pp.  lo-ii.) 

That  the  public  opinion  of  the  time,  as  well  as 
the  men  who  framed  the  Constitution,  believed  jury 
trial  to  be  a  fundamental  right  and  no  mere  method 
of  procedure  is  shown  by  the  following  extract 
from  the  great  ordinance  for  the  government  of  the 
Northwest  Territory,  passed  by  the  Congress  under 
the  Confederation,  and  ratified  by  the  first  Congress 
under  the  Constitution.  The  language  used  is  as 
follows : 

"A7id  for  extending  the  fundamental  /principles 
of  civil  and  religious  liberty  which  form  the  basis 
whereon  these  Republics,  their  law  and  institutions 
are  erected ;  to  fix  and  establish  those  principles  as 
the  basis  of  all  laws,  constitutions  and  governments 
which  forever  hereafter  shall  be  formed  in  the  said 
territory,  etc.,  it  is  hereby  ordained  and  declared,  by 
the  authority  aforesaid,  that  the  following  articles 
shall  be  considered  as  articles  of  compact  between 
the  original  States  and  the  people  and  States  in 
the  said  territory  and  forever  remain  unalterable, 
unless  by  common  consent,  to  wit : 

66 


CONSTITUTIONAL   DEVELOPMENT 

"Art.  I.  No  person  demeaning  himself  in  peace- 
able and  ordinary  manner,  shall  ever  be  molested 
on  account  of  his  mode  of  worship  or  religious  sen- 
timents in  the  said  territory. 

"Art.  2.  The  inhabitants  of  the  said  territory 
shall  always  be  entitled  to  the  benefits  of  the  writ  of 
habeas  corpus  and  of  the  trial  by  jury."  | 

The  Constitution  of  the  United  States  provides,  \ 
Article  IIL,  Section  i  :  / 

"The  trial  of  all  crimes  except  in  cases  of  im- 
peachment shall  be  by  jury." 

The  Fifth  and  Sixth  Amendments  to  the  Consti- 
tution provide : 

"That  no  person  shall  be  held  to  answer  for  capi- 
tal or  otherwise  infamous  crime  unless  on  a  present- 
ment or  indictment  of  a  grand  jury." 

And  that  in  all  criminal  prosecutions : 

"The  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  com- 
mitted." 

It  has  been  held  by  a  long  line  of  authorities,  both 
before  and  after  the  adoption  of  the  Fourteenth 
Amendment,  that  the  so-called  Bill  of  Rights  con- 
tained in  the  first  eight  amendments  to  the  Consti- 

67 


CERTAINTY    AND   JUSTICE 

tution  applied  only  to  the  federal  government  and 
did  not  limit  the  power  of  the  States. 

This  was  due  to  the  fact  that  at  the  time  of  the 
adoption  of  the  Constitution  it  was  fear  of  the  gen- 
eral government  and  its  possible  encroachments 
upon  individual  liberty  that  caused  apprehension 
among  the  people  of  the  States.  Their  aim  was  to 
establish  a  government  which,  though  strong,  would 
yet  not  encroach  upon  the  liberties  which  the  colo- 
nists believed,  by  reason  of  the  course  of  English 
history,  to  be  essential  to  their  happiness  and  pros- 
perity.    {Barron  v.  Baltimore,  y  Pet.,  243.) 

The  States  were  looked  upon  as  the  guarantors 
of  the  liberty  of  their  own  citizens  and  the  "Bill 
of  Rights"  was  not  intended  to  run  against  the 
action  of  the  States.  A  State  could  even  abridge 
the  freedom  of  religion. 

The  case  of  Pcrmoli  v.  New  Orleans  (3  How., 
589)  (1845),  holds  that  the  first  amendment  as  to 
freedom  of  religion  does  not  apply  to  the  action 
of  the  States.  Under  the  reasoning  of  the  Hurtado 
and  Maxwell  cases  this  might  be  true  even  since 
the  enactment  of  the  Fourteenth  Amendment. 

A  statute  of  New  Orleans  passed  in  pursuance  of 
authorization  by  the  state  legislature,  forbade  a  per- 
formance of  funeral  rites  in  any  save  one  build- 
ing in  New  Orleans.  A  deceased  person  was  brought 
to  a  Catholic  Church  and  the  ordinary  funeral  rites 

68 


CONSTITUTIONAL   DEVELOPMENT 

there  performed.  The  parish  priest  in  charge  was 
punished  for  a  violation  of  the  ordinance  and  the 
case  came  to  the  Supreme  Court  of  the  United  States 
on  a  writ  of  error  on  the  ground  that  the  ordinance 
was  in  violation  of  the  First  Amendment  of  the 
Constitution  as  well  as  of  the  act  admitting  Louisi- 
ana to  statehood.  The  answer  made  by  the  court 
was  as  follows: 

'The  Constitution  makes  no  provision  for  protect- 
ing the  citizens  of  the  respective  States  in  tlieir  re- 
ligious liberties;  this  is  left  to  the  State  constitutions 
and  laws ;  nor  is  there  any  inhibition  imposed  by  the 
Constitution  of  the  United  States  in  this  respect  on 
the  States."    (p.  609.) 

The  Constitution  deals  with  practical  and  tangible 
rights  and  does  not  indulge  in  any  i)hilos()i)hic  gen- 
eralizations and  in  this  largely  lies  the  secret  of  its 
success. 

Take,  for  instance,  the  amendments  seriatim. 

The  first  article  provides  that  there  shall  be  no 
established  religion.  It  was  because  of  "an  estab- 
lishment of  religion"  in  England  and  the  persecu- 
tion of  dissenters  therefrom  that  the  founders  of 
Massachusetts  and  numerous  other  colonies  had  left 
the  mother  country.  No  vague  theory  of  natural 
rights  dominated  the  framers.  and  the  fact  that 
there  were  so  many  adherents  of  various  denomi- 
nations among  the  American  people  made  it  impos- 

69 


CERTAINTY   AND   JUSTICE 

sible  that  any  one  religion  should  be  established  and 
this  rendered  it  easy  to  acquiesce  in  a  constitution 
which  protected  all  alike.  The  principle  of  tolera- 
tion was  the  outgrowth  (jf  a  practical  situation 
rather  than  the  result  of  liberal  philosophy  or  re- 
ligious indifferentism. 

The  abridging  of  freedom  of  speech  or  of  the 
press,  likewise  referred  to  a  long  struggle  with  the 
English  Crown,  as  did  the  right  of  the  people  to 
assemble  and  petition  the  government  for  a  redress 
of  grievances  which  we  find  contained  in  the  Pe- 
tition of  Rights  and  embodied  in  the  Bill  of  Rights 
more  than  one  hundred  years  before  Rousseau. 

The  second  article  providing  for  a  well-regulated 
militia,  bore  witness  to  the  constitutional  dislike  of 
English  people  for  a  standing  army,  a  natural  result 
of  the  long  conflict  with  the  Stuart  Kings ;  and  the 
right  of  the  people  to  bear  arms  was  a  tacit  tribute 
to  the  view  that  in  case  of  necessity  other  protection 
than  that  of  a  constitution  might  prove  a  necessary 
resort. 

The  prohibition  in  the  third  article  against  the 
quartering  of  soldiers  in  any  house  is  traceable  to 
the  practice  of  the  Monarchy  before  1688,  rightly 
so  unpopular  in  England. 

The  fourth  article  is  a  direct  outcome  of  that 
long  agitation  which  culminated  in  the  celebrated 
Wilkes  case,  in  which  the  English  courts,  sustaining 

70 


CONSTITUTIONAL   DEVELOPMENT 

Wilkes,  held  general  warrants  and  seizures  illegal. 
The  doctrine  of  Entick  v.  Carringtou  and  Three 
King's  Messengers,  enunciated  so  boldly  by  Lord 
Camden  as  a  canon  of  English  liberty,  became  im- 
bedded in  the  Constitution  as  a  protection,  so  the 
framers  thought,  for  all  future  time  to  the  people 
of  the  states  against  the  possible  tyranny  of  the 
central  government.  {Boyd  v.  United  States,  ii6 
U.  S.,  6i6.) 

The  fifth  and  sixth  articles,  as  well  as  the  sev- 
enth, providing  for  jury  trials  in  civil  cases,  were 
considered  upon  a  par  -.vith  the  other  great  rights, 
and  as  those  three  amendments  occupy  almost  as 
much  space  in  the  eight  amendments  constituting 
the  so-called  "Bill  of  Rights"  as  the  others  put  to- 
gether, it  would  seem  that  the  framers  did  not  con- 
sider that  they  occupied  a  comparatively  subsidiary 
position  and  dealt  merely  with  matters  of  proced- 
ure. The  Supreme  Court  at  this  day  takes  a  very 
different  view  as  we  will  now  see. 

That  grand  and  petit  juries  as  understood  at  the 
common  law  are  essential  in  federal  courts  has  never 
been  questioned  {Ex  parte  Bain,  supra).  That  they 
are  necessary  in  all  our  territories,  acquired  previous 
to  1898,  has  also  been  judicially  determined. 

The  cases  of  Thompson  v.  Utah  ( 170  U.  S.,  343) 
and  American  Publishing  Co.  v.  Fisher  (166  U.  S., 
464)  as  well  as  Springville  v.  Thomas  (166  U.  S., 

71 


CERTAINTY   AND   JUSTICE 

707)  are  authority  for  the  proposition  that  a  ter- 
ritorial Ic.c^islature  in  Utah  coiiUl  not  abolish  jury 
trial,  a  riq;lit  secured  by  the  Constitution  to  every 
person  against  the  action  of  the  federal  govern- 
ment. 

These  cases  have  been  somewhat  refined  away  in 
the  Insular  cases  by  the  suggestion  in  Mr.  Justice 
Brown's  opinion  (Downs  v.  Bidwcll,  182  U.  S., 
244),  that  the  Constitution  had  been  enacted  into 
Utah  Territory  by  legislation  and  hence  was  only 
there  by  force  of  statute,  thus  leaving  open  the 
question  of  the  power  of  Congress  under  the  Con- 
stitution in  territory  outside  the  states. 

Hiirtado  v.  California  (supra)  involved  the 
validity  of  a  section  of  the  constitution  of  Cali- 
fornia, providing  for  prosecution  by  information  in 
place  of  the  common  law  method  of  indictment  in 
cases  of  infamous  crime.  In  the  Supreme  Court  the 
prisoner  claimed  that  under  the  Fourteenth  Amend- 
ment he  was  entitled  to  due  process  of  law,  and 
that  due  process  of  law  involved  indictment  by  grand 
jury. 

The  court  held  (Mr.  Justice  Harlan  dissenting), 
that  due  process  of  law  did  not  necessarily  involve 
indictment  by  grand  jury.  Mr.  Justice  Matthews, 
writing  for  the  court,  went  into  the  historic  evi- 
dence as  to  the  origin  of  juries  and  came  to  the  con- 
clusion that  the  phrase  "Due  Process  of  Law,"  or 

72 


CONSTITUTIONAL   DEVELOPMENT 

its  equivalent  in  English  institutional  history,  "The  / 
Law  of  the  Land,"  did  not  include  indictment  in 
capital  cases. 

Yet,  whatever  may  have  hecn  the  fact  at  the 
time  Magna  Charta  was  wrung  from  King  John 
whether  "judgment  of  his  peers"  {Judicium  ' 
parium)  meant  what  jury  trial  now  does,  or,  as  the 
more  modern  historians  believe,  referred  to  the  then 
Court  of  Exchequer,  it  does  appear  altogether  clear 
that,  at  the  time  of  the  ratification  of  the  Constitu- 
tion, due  process  of  law  in  capital  cases  necessarily 
involved  jury  trial. 

By  going  back  to  the  beginnings  of  history,  a 
time  will  be  reached  when  almost  any  one  of  our 
present  institutions  is  found  in  the  mere  germ  and 
would  seem,  except  perhaps  to  the  antiquary,  wholly 
unrecognizable.  Due  process  of  law  once  involved 
maiming,  torturing,  the  ordeal  by  fire  and  water, 
the  peine  forte  et  dure  and  the  other  processes  which 
we  now  look  upon  as  barbarous  and  shocking,  but 
the  question  which  would  seem  to  have  been  pre- 
sented in  Hurtado  v.  California,  was  what  the 
phrase,  "Due  Process  of  Law,"  meant  at  the  time  of 
the  ratification  of  the  Constitution,  or  perhaps  what 
it  meant  at  the  time  of  the  passage  of  the  Four- 
teenth Amendment.  Weems  v.  United  States  (217 
U.  S.,  349)- 

It  seems  to  us  that   Mr.   Justice  Matthews,   in 

73 


CERTAINTY    AND   JUSTICE 

going  back  to  primitive  law,  is  in  conflict  with  the 
view  propounded  in  Thompson  v.  Utah  ( 170  U.  S., 
343).  In  the  latter  case,  jury  trial,  the  court  as- 
sumed to  have  been  essential  from  the  time  of 
Magna  Charta,  and  while  this  may  historically  be 
open  to  question,  nevertheless,  the  decision  of  the 
court  in  that  case  was  based  upon  the  proposition 
that  it  was  deemed  fundamental  at  the  time  of  the 
ratification  of  the  Constitution. 

It  would  seem  that  the  decision  in  Hurtado  v. 
California  was  really  due  to  the  fact  that  a  century 
of  legal  development  had  changed  American  public 
opinion  upon  the  subject  of  the  jury.  This  appears 
forcibly  in  the  case  of  Maxwell  v.  Dow  (176  U.  S., 
581),  a  later  case  of  the  highest  importance. 
There  the  same  question  was  presented  as  in 
Hurtado  v.  California,  together  with  a  further  one 
arising  from  the  fact  that  the  trial  had  been  by  a 
jury  of  eight  under  the  California  constitution  and 
law.  An  argument  not  urged  or  pressed  by  coun- 
sel in  the  Hurtado  case  was  here  advanced  and  fully 
considered  by  the  court.  Counsel  for  the  prisoner 
claimed  that  the  Fourteenth  Amendment  providing 
that  no  state  shall  abridge  any  of  the  rights,  privi- 
leges or  immunities  of  a  citizen  of  the  United 
States,  guaranteed  to  every  citizen  jury  trial.  His 
claim  was  in  effect  that  the  first  eight  amendments 
to  the  Constitution  enumerated  fundamental  rights 

74 


CONSTITUTIONAL   DEVELOPMENT 

of  an  American  citizen  which  no  State  could 
abridge. 

The  court  thought  otherwise,  holding  that  the 
eight  amendments,  after  the  ratification  of  the  Four- 
teenth Amendment  had  no  greater  scope  than  before 
and  were  still  solely  directed  against  the  action  oi 
the  federal  government.  The  Fourteenth  Amend- 
ment, not  having  made  them  applicable  to  the  ac- 
tion of  the  States,  while  it  wa?  difficult  to  enumerate 
just  what  the  rights  and  immunities  of  an  American 
citizen  were,  jury  trial,  and  indictment  by  grand 
jury  were  not  included  among  them. 

This  was  indeed  a  momentous  decision. 

The  Fourteenth  Amendment  according  to  iW\> 
view  did  not  attempt  to  enlarge  the  existing  rights 
and  immunities  of  American  citizens,  but  at  most 
merely  protected  existing  rights  and  immunities 
against  the  State  governments.  What  were  these 
rights  and  how  should  they  be  determined?  If  they 
were  not  contained  in  the  first  eight  amendments, 
where  did  the  Constitution  provide  for  them? 
These  rights  and  immunities  are  not  enumerated  in 
nor  conferred  by  any  clause  of  the  Constitution 
except  in  so  far  as  they  may  be  conferred  in  tlir 
clause  providing : 

"Art.  4,  Sec.  2.  The  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  iminuiiilics  of  citi- 
zens in  the  several  States." 

75 


CERTAINTY   AND   JUSTICE 

It  was  pointed  out  by  counsel  in  the  Maxwell  case 
that  the  debates  in  Congress  evidenced  the  inten- 
tion of  the  framers  of  the  amendment  to  confer 
upon  the  citizen  of  the  State  all  the  rights  contained 
in  the  eight  amendments.  Had  this  view  been 
adopted  it  would  have  gone  far  toward  national- 
izing the  domain  of  civil  liberty,  as  was  the  evident 
intent  of  the  framers  of  the  amendment,  but  the 
fact  that  the  court  took  a  different  view  would  seem 
to  have  rendered  that  portion  of  the  amendment 
virtually  meaningless. 

If  the  privileges  and  immunities  of  citizens  of 
the  United  States  have  been  in  no  way  increased  by 
the  amendment,  it  is  hard  to  see  what  benefit  such 
citizens  have  received.  The  rights  and  privileges 
which  they  enjoyed  already  under  the  Constitution 
were  protected  as  well  before  as  after  the  Four- 
teenth Amendment;  unless  they  were  to  receive 
some  advantage  from  this  clause,  why  should  it 
have  been  inserted? 

Was  it  merely  declaratory? 

It  certainly  did  not  seem  so  to  the  people  of  the 
United  States  at  the  time  of  its  enactment.  Could 
they  have  supposed  it  meant  so  little  they  would 
scarcely  have  treated  the  matter  so  seriously. 

The  fact  would  seem  to  be  that  the  decision  in 
those  tW'O  cases  was  largely  due  to  the  reaction 
against  the  national  and  centralizing  tendencies  of 

76 


CONSTITUTIONAL   DEVELOPMENT 

the  civil  war  and  the  years  immediately  following. 
Did  not  the  court  feel  that  this  portion  at  least  of 
the  amendment  did  not  represent  the  real  opinitm  of 
the  people?  Did  not  the  view  of  the  court  rather 
represent  the  calm  afterthought  of  the  American 
public  than  that  of  the  framers  of  the  amendment 
itself? 

It  is  apparent  that  the  court  took  a  different  view 
from  that  of  the  framers  of  the  Fourteenth  Amend- 
ment as  to  a  pure  question  of  political  science.  The 
question  was,  whether  civil  liberty  should  for  its 
sanction  depend  mainly  upon  the  State  or  upon  the 
federal  government.  What  the  framers  of  the 
instrument  almost  certainly  intended  to  do  was 
to  withdraw  the  essentials  of  liberty,  or  what 
they  deemed  such,  from  possible  invasion  by  the 
State  governments  and  to  place  them  under  the 
protection  of  the  national  government.  The 
court  evidently  believed  that  such  a  course 
would  have  been  unwise,  if  not  positively  revo- 
lutionary. 

The  reasoning  in  these  cases  is  based  upon  the 
dictum  of  Mr.  Justice  Miller  in  the  Slaughter  House 
Cases  (i6  Wall.,  36). 

"Was  it  the  purpose  of  the  Fourteenth  .Amend- 
ment, by  the  simple  declaration  that  no  State  should 
make  or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citi::ens  of  the  United 

77 


CERTAINTY   AND   JUSTICE 

States,  to  transfer  the  security  and  protection  oi  all 
the  civil  ri;:jhts.  which  we  have  mentioned,  from  the 
states  to  the  federal  j:^overnment  ?  And  where  it  is 
declared  that  Congress  shall  have  the  power  to  en- 
force that  article,  was  it  intended  to  bring  within  the 
power  of  Congress  the  entire  domain  of  civil  rights 
heretofore  belonging  exclusively  to  the  States? 
*  *  *  The  aryuuient  we  admit  is  not  akvays  the 
most  conclusive  zvhich  is  drawn  from  the  conse- 
quences urged  against  the  adoption  of  a  particxdar 
construction  of  an  instrument.  But  when,  as  in  the 
case  before  us,  these  consequences  are  so  serious,  so 
far-reaching  and  pervading,  so  great  a  departure 
from  the  structure  and  spirit  of  our  institutions; 
when  the  effect  is  to  fetter  and  degrade  the  State 
governments  by  subjecting  thou  to  the  control  of 
Congress  in  the  exercise  of  power  heretofore  uni- 
versally conceded  to  them  of  the  most  ordinary  and 
fundamental  character;  when,  in  fact,  it  radically 
changes  the  whole  theory  of  the  relations  of  the 
State  and  federal  governments  to  each  other  and  of 
both  these  governments  to  the  people;  the  argument 
has  a  force  that  is  irresistible  in  the  absence  of  lan- 
guage which  expresses  such  a  purpose  too  clearly  to 
admit  of  doubt. 

"IVe  are  convinced  that  no  such  results  were  in- 
tended by  the  Congress  zvhich  proposed  these  amend- 
ments, nor  by  the  legislatures  of  the  States  which 
ratified  than."     (pp.  589-590.) 

The  court  in  Maxwell  v.  Doze  (176  U.  S.,  581), 
after  quoting  the  above,  says : 

78 


CONSTITUTIONAL   DEVELOPMENT 

"The  definition  of  the  words  'privileges  and  im- 
munities,' as  given  by  Mr.  Justice  Washington,  was 
adopted  in  substance  in  Paul  v.  Virginia,  8  Wall., 
1 68,  1 80,  and  in  Ward  v.  Maryland,  12  Wall.,  418, 
430.  These  rights,  it  is  said  in  the  Slaughter  House 
Cases,  have  always  been  held  to  be  the  class  of 
rights  which  the  State  governments  were  created  to 
establish."     (pp.  591-592.) 

Yet  if  they  were  safe  in  the  hands  of  the  State 
governments  why  did  the  Fourteenth  Amendment 
prescribe  that  no  State  should  abridge  them  ? 

This  leaves  the  question  in  a  most  anomalous  con- 
dition. The  rights  referred  to  then  would  be  the 
rights  conferred  by  the  States  generally  upon  their 
own  citizens.  As  the  legislation  is  different  in  each 
State,  their  traditions  and  legal  systems  being  in 
many  cases  entirely  dissimilar,  it  would  seem  very 
difficult  to  define  or  enumerate  these  rights.  Should 
Utah  enact  all  the  tenets  of  the  Mormon  religion 
into  law  obligatory  on  all,  could  the  New  Yorker 
sojourning  in  that  State  complain  ?  He  could  not 
allege  that  he  had  been  denied  any  privilege  or  im- 
munity accorded  to  citizens  of  Utah. 

The  privilege  and  immunity  clause  of  the  Four- 
teenth Amendment  as  thus  interpreted  has  created 
no  new  privileges  or  immunities.  It  may,  however, 
be  claimed  that  what  the  Fourteenth  Amendment 
really  meant  to  do,  and  this  is  probably  what  the 

79 


CERTAINTY   AND   JUSTICE 

court  intended  to  announce,  was  to  protect  from 
the  interference  of  the  State  all  those  general  rights 
which  the  States  had  accorded  to  the  individual. 

If  this  be  the  meaning  of  the  Fourteenth  Amend- 
ment as  now  interpreted,  the  court  will  have  to  de- 
termine the  rights  which  it  considers  to  be  funda- 
mental, and  it  could  only  reach  this  result  by  a 
process  somewhat  analogous  to  that  used  by  the 
Roman  lawyers  in  determining  what  rules  and  in- 
stitutions belonged  to  the  jus  geiitmm.  It  would  be 
necessary  to  discover  those  rights  which  all  the 
States  had  at  all  times  accorded  to  their  citizens, 
solely  because  of  their  citizenship.  Such  rights  tlu 
court  apparently  intends  to  designate  when  it  speaks 
of  fundamental  rights.  Under  this  view,  the  court 
is  really  empowered  to  determine  what  rights  do 
and  what  rights  do  not  belong  to  the  category  of 
fundamental  rights,  and  in  doing  this  they  are  exer- 
cising an  extraordinary  and  almost  unprecedented 
power. 

It  is  obvious  that  all  rights  granted  by  the  Con- 
stitution are  protected  by  it.  What  rights,  not 
created  by  the  Constitution,  are  "secured"  by  it,  it  is 
impossible  to  state  more  definitely  than  we  have 
already  indicated. 

"There  is  no  intimation  here  that  among  the 
privileges  or  immunities  of  a  citizen  of  the  United 
States  are  the  right  of  trial  by  jury  in  a  state  court 

80 


CONSTITUTIONAL   DEVELOPMENT 

for  a  State  offense  and  the  right  to  be  exempt  from 
any  trial  for  an  infamous  crime,  unless  upon  pre- 
sentment by  a  grand  jury."  (Maxzvell  v.  Dow,  176 
U.  S.,  581,  594.) 

It  would  seem  that  had  the  intention  of  the 
framers  of  the  Fourteenth  Amendment  been  car- 
ried out  by  the  court  there  would  have  been  no  such 
difficulty  in  discovering  the  "precise  meaning  of 
privileges  and  immunities." 

The  privileges  and  immunities  of  citizens  of  the 
United  States  should  not  be  matters  so  difficult  or 
"tedious"  to  define.  The  view  that  this  phrase  in- 
cluded the  liberties  enumerated  in  the  Bill  of  Rights 
and  that  the  Fourteenth  Amendment  intended  to 
secure  these  great  historic  rights  against  all  gov- 
ernment, both  state  and  national,  would  have  left 
little  ground  for  doubt  or  difficulty.  Seventy  years 
of  experience  had  demonstrated  that  the  danger  to 
liberty  came  rather  from  the  states  than  from  the 
federal  government.  The  framers  of  the  amend- 
ment surely  took  this  view,  but  the  court  evidently 
proceeded  on  another  theory. 

Such  rights,  in  addition  to  those  already  secured 
against  State  action  in  the  First  Article  of  the  Con- 
stitution would  have  made  a  formidable  array  of 
rights  and  immunities  which  every  American  citi- 
zen would  have  possessed,  whereas  under  the 
present  interpretation  oi  the  amendment  it  is  im- 

81 


CERTAINTY   AND   JUSTICE 

possible  for  him  to  know  exactly  what  his  rights 
are. 

In  both  the  ITurtado  and  Maxwell  cases  masterly 
dissenting^  opinions  were  written  by  Mr.  Justice  Har- 
lan. These  opinions  are  among  the  best  written 
by  that  learned  and  experienced  jurist.  They  make 
it  clear  that  the  decisions  mentioned  have  repealed 
much  of  the  Fourteenth  Amendment. 

Recent  cases  show  that  the  States  are  as  free 
from  trammel  by  the  Bill  of  Rights  of  the  Federal 
Constitution  to-day  as  they  were  before  the  amend- 
ment. 

"The  provision  in  reference  to  cruel  and  unusual 
punishments  was  taken  from  the  well-known  act 
of  Parliament  of  1688,  entitled  'An  Act  Declaring 
the  Rights  and  Liberties  of  the  Subject  and  Settling 
the  Succession  of  the  Crown,'  in  which  after  re- 
hearsing various  grounds  of  grievance,  and  among 
others,  that  'excessive  bail  hath  been  required 
of  persons  committed  in  criminal  cases,  to  elude 
the  benefit  of  the  laws  made  for  the  liberty  of 
the  subjects ;  and  excessive  fines  have  been  im- 
posed; and  illegal  and  cruel  punishments  inflicted.' 
*  *  *  Stat.  I  W.  &  M.  c.  2.  This  Declaration 
of  Rights  had  reference  to  the  acts  of  the  executive 
and  judicial  departments  of  the  government  of  Eng- 
land ;  but  the  language  in  question  as  used  in  the 
constitution  of  the  State  of  New  York  was  in- 
tended particularly  to  operate  upon  the  legislature 
of  the  State,  to  whose  control  the  punishment  of 

82 


CONSTITUTIONAL   DEVELOPMENT 

crime  was  almost  wholly  confided.  So  that,  if  the 
punishment  prescribed  for  an  offense  against  the 
laws  of  the  state  were  manifestly  cruel  and  unusual, 
as  burning  at  the  stake,  crucifixion,  breaking  on  the 
wheel,  or  the  like,  it  would  be  the  duty  of  the 
courts  to  adjudge  such  penalties  to  be  within  the 
constitutional  prohiljition.  And  we  tJiiiik  this 
equally  true  of  the  Eighth  Amendment,  in  its  appli- 
cation to  Congress."  (In  re  Kemler,  136  U.  S., 
436,  at  pp.  446,  447.) 

How  is  it  to  be  determined  what  rights  are  funda- 
mental and  what  are  not  if  the  Constitution  has  not 
determined  it  ?  They  must  be  questions  to  be  deter- 
mined by  the  court,  and  this  substitutes  the  judg- 
ment of  the  court  in  each  particular  case,  for  the 
precise  and  clear  language  of  the  Constitution. 

It  seems  to  us  that  there  is  no  escape  from  this 
inference;  it  is  the  only  theory  upon  which  the  de- 
cision in  Maxwell  v.  Dow  can  be  explained.  Such 
was  the  view  that  Mr.  Justice  Harlan  t«jok  of  the 
prevailing  opinion,  for  he  says : 

"When  our  more  immediate  ancestors  removed 
to  America,  they  brought  this  privilege  (jury  trial) 
with  them,  as  their  birthright  and  inheritance,  as  a 
part  of  that  admirable  common  law  which  had 
fenced  around  and  interposed  barriers  on  every  side 
against  the  approaches  of  arbitrary  power.  It  is 
now  incorporated  into  all  our  state  constitutions  as 
a  fundamental  right,  and  the  Constitution  of  the 

83 


CERTAINTY   AND   JUSTICE 

United  States  would  have  been  justly  obnoxious  to 
the  most  conclusive  objection  if  it  had  not  recf>g- 
nized  and  confirmed  it  in  the  most  solemn  terms." 
(p.  6io.) 

The  scope  of  the  decision  and  its  far  reaching 
efYect  was  clearly  seen  by  Mr.  Justice  Harlan: 

"Suppose  the  State  of  Utah  should  amend  its  con- 
stitution and  make  the  Mormon  religion  the  estab- 
lished religion  of  the  state,  to  be  supported  by  taxa- 
tion on  all  the  people  of  Utah.  Could  its  right  to 
do  so,  as  far  as  the  Constitution  of  the  United 
States  is  concerned,  be  gainsaid  under  the  princi- 
ples of  the  opinion  just  delivered?  If  such  an 
amendment  were  alleged  to  be  invalid  under  the 
national  Constitution,  could  not  the  opinion  herein 
be  cited  as  showing  that  the  right  to  the  free  ex- 
ercise of  religion  was  not  a  privilege  of  a  'citizen 
of  the  United  States'  within  the  meaning  of  the 
Fourteenth  Amendment?  *  *  *  There  is  no 
middle  position,  unless  it  be  assumed  to  be  one  of 
the  functions  of  the  judiciary  by  an  interpretation  of 
the  Constitution  to  mitigate  or  defeat  what  its  mem- 
bers may  deem  the  erroneous  or  unwise  action  of 
the  people  in  adopting  the  Fourteenth  Amendment. 
*  *  *  The  right  to  be  tried  when  charged  with 
crime,  by  a  jury  of  twelve  persons,  is  placed  by  the 
Constitution  upon  the  same  basis  as  the  other  rights 
specified  in  the  first  ten  amendments.  And  while 
those  amendments  originally  limited  only  the  powers 
^of  the  national  government  in  respect  of  the  priv- 

84 


CONSTITUTIONAL   DEVELOPMENT 

ileges   and   immunities   specified   therein    since    the  ' 
adoption  of  the  Fourteenth  Amendment  those  privi- 
leges   and    immunities    are,    in    my    opinion,    also 

guarded     against     infringement     by     the     states. 

*     *     * 

"//  some  of  the  guarantees  of  life,  liberty  and 
property,  which  at  the  time  of  the  adoption  of  the 
national  Constitution  were  regarded  as  fundamental 
and  as  absolutely  essential  to  the  enjoyment  of  free- 
dom, have,  in  the  judgment  of  some,  ceased  to  be 
of  practical  value,  it  is  for  the  people  of  the  United 
States  so  to  declare  by  an  amendment  of  that  in- 
strument. But,  if  I  do  not  wholly  misapprehend 
the  scope  and  legal  effect  of  the  present  decision, 
the  Constitution  of  the  United  States  does  not  stand 
in  the  way  of  any  State  striking  down  guarantees  of 
life  and  liberty  that  English  speaking  people  have 
for  centuries  regarded  as  vital  to  personal  security, 
and  which  the  men  of  the  Revolutionary  period  uni- 
versally claimed  as  the  birthright  of  freedom." 
(pp.  616-617.) 

This  reasoning  seems  to  be  quite  unanswerable. 
It  emphasizes  the  fact  that  under  the  fiction  of 
interpretation  the  court  has  actually  changed  the 
Constitution. 

In  the  Hurtado  and  Maxwell  cases  the  court  had 
already  indicated  a  belief  that  there  were  certain 
fundamental  rights  belonging  to  United  States  citi- 
zens, which  rights  were  not  necessarily  contained 

8S 


CERTAINTY   AND   JUSTICE 

among  the  rights  guaranteed  to  the  individual  by  the 
Constitution. 

The  court  in  the  Insular  Cases  clearly  admitted 
the  existence  of  this  distinction,  based  upon  the  na- 
ture of  the  rights  in  themselves.  The  decision  there 
did  not  turn  on  tlie  (juestion,  so  that  the  expression 
quoted  below  is  a  dictum. 

Mr.  Justice  Brown  {Downcs  v.  Bidwcll,  182  U. 
S.,  244)   uses  the  following  significant  language: 

"There  are  certain  principles  of  natural  justice 
inherent  in  the  Anglo-Saxon  character  which  need 
no  expression  in  constitutions  or  statutes  to  give 
them  effect  or  to  secure  dependencies  against  leg- 
islation manifestly  hostile  to  their  real  interests." 
(p.  280.) 

''We  suggest,  without  intending  to  decide,  that 
there  Diay  be  a  distinction  between  certain  natural 
rights,  enforced  in  the  Constitution  by  prohibitions 
against  interference  with  them,  and  what  may  be 
termed  artificial  or  remedial  rights,  which  are  pecu- 
liar to  our  own  system  of  jurisprudence.  Of  the 
former  class  are  the  rights  to  one's  own  religious 
opinions  and  to  a  public  expression  of  them  or,  as 
sometimes  said,  to  worship  God  according  to  the 
dictates  of  one's  own  conscience;  the  right  to  per- 
sonal liberty  and  individual  property ;  to  freedom  of 
speech  and  of  the  press;  to  free  access  to  courts 
of  justice,  to  due  process  of  law  and  to  equal  pro- 
tection of  the  laws;  to  immunities  from  unreason- 
able searches  and  seizures,  as  well  as  cruel  and  im- 

86 


CONSTITUTIONAL   DEVELOPMENT 

usual  punishments ;  and  to  such  other  immunities 
as  are  indispensable  to  a  free  government.  Of  the 
latter  class  are  the  rights  to  citizenship,  to  suffrage 
(Minor  v.  Happersett,  21  Wall.  162),  and  to  the 
particular  methods  of  procedure  pointed  out  in  the 
Constitution,  which  are  peculiar  to  Anglo-Saxon 
jurisprudence,  and  some  of  which  have  already 
been  held  by  the  States  to  be  unnecessary  to  the 
proper  protection  of  individuals."     (pp.  282-283.) 

All  of  the  rights  which  Mr.  Justice  Brown  has 
spoken  of  as  "natural  rights,"  the  court,  as  we  have 
shown,  holds  the  States  may  under  the  Constitution 
disregard,  and  their  reasoning  has  not  been  based 
upon  the  distinction  in  the  nature  of  the  rights  them- 
selves, although  incidental  remarks  may  be  found 
to  that  effect. 

This  passage  when  analyzed  must  be  based  upon 
one  of  two  alternative  theories: 

(i)  Either  the  natural  rights  spoken  of  by  the 
learned  Justice  exist  of  themselves  and  wholly  apart 
from  the  Constitution,  deriving  their  sanction  from 
a  supposed  law  of  nature  and  not  from  that  instru- 
ment; 

(2)  or  the  language  of  the  Constitution  itself 
protecting  those  rights  is  so  broad  and  imperative 
as  to  be  of  universal  application  to  government  ac- 
tion in  the  specific  cases. 

87 


CERTAINTY   AND   JUSTICE 

If  the  former  be  the  proper  interpretation  of  this 
interesting  passage,  the  questions  which  would  arise 
in  regard  to  it  would  not  present  problems  of  con- 
stitutional law  at  all,  but  questions  of  political  phil- 
osophy. If  there  are  certain  rights  which  are  pro- 
tected because  they  are  assumed  to  belong  to  the 
category  of  "natural  rights,"  the  question  in  each 
case  would  be  as  to  whether  such  rights  were 
"natural"  or  not.  If  they  were  they  would  be  pro- 
tected because  of  their  inherent  character,  and  if 
they  were  not,  they  would  either  have  to  rely  upon 
positive  man-made  law  for  their  sanction,  or  else 
be  unprotected  by  any  law. 

As  almost  every  writer  upon  the  subject  has  dif- 
fered as  to  what  natural  rights  are,  his  views  usually 
expressing  the  general  ideals  of  the  particular  time 
in  which  he  happened  to  live,  we  must  respectfully 
submit  that  any  appeal  to  natural  rights  at  this  day 
must  prove  utterly  futile. 

Nor  do  we  at  all  believe  that  the  learned  Justice 
meant  that  certain  rights  were  to  be  protected  inde- 
pendently of  constitutional  and  positive  law  simply 
because  they  were  "natural."  We  incline  to  think 
the  true  meaning  of  the  passage  to  be  that  the  posi- 
tive prohibitions  against  all  action  upon  the  part 
of  Congress  in  certain  cases  were  intended  for  the 
protection  of  what  were  deemed  natural  rights,  and 
that  consequently  some  at  least  of  that  vague  body 


CONSTITUTIONAL  DEVELOPMENT 

of  philosophic  doctrine  has  been  transplanted  into 
the  domain  of  positive  law  and  given  the  dignity  of 
constitutional  adoption  by  being  placed  in  the  first 
eight  amendments  to  the  Constitution.  Therefore, 
we  suggest,  Mr.  Justice  Brown  must  refer  to  the 
same  rights  which  he  mentions  in  the  following 
passage : 

"To  sustain  the  judgment  in  the  case  under  con- 
sideration, it  by  no  means  becomes  necessary  to 
show  that  none  of  the  articles  of  the  Constitution 
apply  to  the  island  of  Porto  Rico.  There  is  a  clear 
distinction  between  such  prohibitions  as  go  to  the 
very  root  of  the  power  of  Congress  to  act  at  all,  ir- 
respective of  time  or  place,  and  such  as  are  operative 
only  throughout  the  United  States  or  among  the 
several  states."     {Downes  Case,  pp.  276-277.) 

This  seems  likewise  to  be  the  thought  of  Mr.  Jus- 
tice White  in  the  same  case,  for  he  says : 

"Undoubtedly  there  are  general  prohibitions  in  the 
constitution  in  favor  of  the  liberty  and  property  of 
the  citizen  which  are  not  mere  regulations  as  to 
the  form  and  manner  in  wJiicJi  a  conceded  power 
may  he  exercised,  hut  which  are  an  ahsolute  denial  of 
all  authority  under  any  circumstances  or  conditions 
to  do  particidar  acts."  {Downes  Case,  182  U.  S.,  p. 
294.) 

The  distinction  referred  to  is  founded,  then,  not 
upon  a  difference  in  the  nature  of  the  rights  them- 

89 


CERTAINTY   AND   JUSTICE 

selves,  that  is  to  say,  as  to  whether  they  are  natural 
or  artificial,  but  upon  the  language  of  the  prohi- 
bitions directed  against  the  action  of  Congress. 

This  being  established,  let  us  examine  this  dis- 
tinction with  a  view  of  ascertaining  its  soundness, 
and  whether  any  line  of  demarcation  can  be  drawn 
between  the  absolute  withdrawals  of  power  from 
Congress  and  "the  form  and  manner  in  which  a  con- 
ceded power  may  be  exercised."  If  such  a  distinc- 
tion be  sound  it  would  be  possible  to  relegate  the 
Fifth,  Sixth  and  Seventh  Amendments  to  an  in- 
ferior category. 

Mr.  Justice  Brown  speaks  of  the  right  to  due 
process  of  law  and  to  immunity  from  unreasonable 
searches  and  seizures,  as  well  as  from  cruel  and 
unusual  punishments,  coupling  them  with  freedom 
of  conscience,  freedom  of  the  press,  etc.,  as  "natural 
rights."  Congress  has  the  power  to  take  property, 
to  institute  searches,  to  make  seizures  and  to  execute 
punishments.  It  is  evident,  therefore,  that  in  no 
one  of  these  instances  does  the  prohibition  go  to 
the  root  of  the  power  of  Congress  to  perform  the 
acts  in  question.  It  may  authorize  all  these  things, 
but  when  the  government  takes  property  it  must  do 
so  by  due  process  of  law ;  when  it  institutes  searches, 
they  must  be  reasonable  (that  is  to  say.  according 
to  the  canons  of  the  common  law),  and  when  it 
prescribes  punishments,  they  must  be  neither  cruel 

90 


CONSTITUTIONAL   DEVELOPMENT 

nor  unusual,  as  those  words  are  understood  in  the 
light  of  English  and  American  common  law  and 
civilization. 

It  thus  appears  that  in  the  seven  illustrations  given 
by  the  learned  justice  of  rights  with  which  Con- 
gress may  in  no  event  interfere,  three  are  protected 
by  the  prohibitions  which  do  not  "go  to  the  root 
of  the  power  of  Congress"  at  all.  Nor  is  it  possible 
to  claim  that  the  instances  mentioned  belong  to  the 
shadowy  domain  of  natural  or  fundamental  rights 
rather  than  to  the  more  strictly  defined  and  easily 
ascertainable  category  of  common  law  rights.  The 
Fifth  Amendment  contains  a  number  of  prohibitions 
directed  against  the  action  of  Congress,  all  of  which 
are  admittedly  based  upon  so-called  common  law 
categories  rather  than  up(jn  more  general  rights 
not  so  wholly  identified  w^ith  the  development  and 
history  of  the  English  law.  If,  therefore,  for  either 
of  the  reasons  suggested  there  exists  no  distinction 
in  the  Constitution  between  the  prohibitions  in 
favor  of  natural  rights  and  those  in  favor  of  arti- 
ficial rights,  consistency  necessarily  dictates  that  all 
of  these  be  placed  in  the  same  class. 

Not  one  of  these  rights  was  protected  against  the 
action  of  the  government  in  Roman  law  countries 
at  the  time  of  the  adoption  of  the  Constitution,  and 
they  are  clearly  English  common  law  rights  in  their 
genesis  and  development.     They  were  totally  op- 

91 


CERTAINTY   AND   JUSTICE 

posed  to  the  inquisitorial  system  of  the  civil 
law,  and  are  exactly  in  the  same  category  with 
the  right  to  be  tried  only  upon  presentment  by 
a  grand  jury  and  to  be  convicted  only  upon  a 
unanimous  verdict  of  a  petit  jury.  No  refine- 
ment of  philosophy  can  segregate  the  rights  con- 
tained in  these  two  amendments  into  different 
classes. 

If  in  the  lapse  of  time  some  of  the  rights  guaran- 
teed by  the  Constitution  are  gradually  deemed  of 
less  importance  than  formerly,  it  may  be  that  the 
people  should  be  called  upon  in  the  regular  constitu- 
tional way  to  amend  that  instrument.  The  framers 
believed  jury  trial  to  be  an  essential  element  of  lib- 
erty. Probably  many  of  our  people  no  longer  take 
that  view.  Should  the  apparent  change  in  public 
sentiment  be  sufficient  reason  to  induce  the  court  to 
make  a  decision  which  will  be  authority  for  the 
proposition  that  law  courts,  acting  under  United 
States  sanction,  may  in  our  own  domestic  territory, 
without  acting  "contrary  to  the  Constitution," 
ignore  rights  which  English  speaking  men  have 
considered  vital  since  the  barons  humbled  King 
John  at  Runnymede? 

The  language  of  Mr.  Justice  Brown  as  to  natural 
rights  quoted  above  was  used  as  a  foundation  upon 
which  to  decide  the  Mankichi  Case  (190  U.  S.,  197) 
and  that  which  was  a  mere  dictum  in  the  Downes 

92 


CONSTITUTIONAL   DEVELOPMENT 

case  has  now  become  part  of  our  constitutional  law 
by  reason  of  that  decision. 

In  the  Mankichi  case,  Congress,  in  annexing 
Hawaii,  declared  that: 

"The  municipal  legislation  of  the  Hawaiian  Isl- 
ands, not  enacted  for  the  fulfillment  of  the  trea- 
ties so  extinguished,  and  not  inconsistent  with  this 
joint  resolution  nor  contrary  to  the  Constitution  of 
the  United  States,  nor  to  any  existing  treaty  of  the 
United  States,  shall  remain  in  force  until  the  Con- 
gress of  the  United  States  shall  otherwise  deter- 
mine,"    (190  U.  S.,  p.  209.) 

Under  the  law  as  it  stood  at  the  time  of  the 
annexation  of  the  Hawaiian  Islands,  criminal  prose- 
cutions were  initiated  by  information,  and  trials 
were  with  a  jury  which  could  convict  by  a  three- 
fourths  vote.  The  defendant,  Mankichi,  was  so 
tried  and  convicted  of  manslaughter.  He  sued  out 
a  writ  of  habeas  corpus,  which  was  sustained,  and 
the  Attorney-General  of  the  islands  took  an  appeal 
to  the  Supreme  Court  of  the  United  States. 

The  case  did  not  involve  the  question  argued  in 
the  Insular  Cases  as  to  whether  the  Constitution 
was  of  itself  applicable  to  the  outlying  possessions 
of  the  United  States.  The  sole  question  was 
whether  when  Congress  enacted  that  all  laws  not 
"contrary  to  the  Constitution"  should  remain  in 
force  in  Hawaii,  the  Fifth  ami  Sixth  .Xmcndmcnts 

93 


CKRTAINIY    AND   JUSTICK 

were  not  applicable  there  as  elsewhere  through- 
out the  United  States.  These  very  amend- 
ments had  been  held  applicable  to  criminal 
prosecutions  in  the  other  territories  of  the  United 
States.  (American  Pub.  Co.  v.  Fisher,  i66  U.  S., 
464;  Thompson  v.  Utah,  170  U.  S.,  343,  and  other 
cases.)  It  was  urged  that  unless  they  were  like- 
wise applied  in  Hawaii  this  phrase  of  the  Act  of 
Congress  was  absolutely  meaningless,  and  had  the 
laws  of  Hawaii  established  religious  tests  for  the 
holding  of  office,  burning  as  a  customary  punish- 
ment, and  general  search  warrants  as  a  part  of  their 
procedure,  such  would  not  have  been  any  more  ob- 
noxious to  the  constitutional  objection  than  denial 
of  the  jury  trial  prescribed  by  the  Fifth  and  Sixth 
Amendments 

The  government  counsel,  on  the  other  hand,  rely- 
ing upon  the  dictum  of  Mr.  Justice  Brown,  above 
adverted  to,  refused  to  assent  to  this  conclusion,  but 
claimed  that  there  was  a  certain  line  of  cleavage  be- 
tween the  various  prohibitions  contained  in  the  Bill 
of  Rights  in  that  some  of  the  rights  were  funda- 
mental or  natural,  while  others  only  related  to 
methods  of  procedure  and  hence  could  be  dispensed 
with  by  the  government. 

The  question  was  thus  squarely  presented  to  the 
court  as  to  whether  it  had  power  to  distinguish  be- 
tween equally  positive  prohibitions  in  the  Constitu- 

94 


CONSTITUTIONAL   DEVELOPMENT 

tion  on  the  ground  that  some  belonged  to  the  domain 
of  natural  rights,  while  others  did  not.  This  would 
make  the  criterion  of  the  rights  of  citizens  or  other 
persons  in  the  United  States  dependent  upon  the 
court's  view  as  to  what  constituted  natural  rights 
rather  than  upon  the  positive  mandate  of  the  Con- 
stitution. 

In  principle  this  view  was  irreconcilable  with  the 
decision  in  Ex  parte  Bain  (121  U.  S.,  i). 

The  court  answers  the  (juestion,  by  saying  that 
a  literal  interpretation  of  the  statute  would  make 
applicable  to  existing  Hawaiian  law  the  prohibitions 
contained  in  the  two  amendments  mentioned,  but 
that  no  such  literal  interpretation  should  be  given 
the  statute,  as  it  should  be  assumed  that  Congress 
did  not  mean  to  disturb  the  existing  criminal  legis- 
lation in  the  islands.  Therefore,  the  trial  as  held, 
was  decided  not  to  have  contravened  the  Constitu- 
tion, but  the  court  said,  in  answer  to  the  argument 
of  counsel,  that  their  decision  in  favor  of  the  govern- 
ment would  necessarily  be  to  render  the  words 
"contrary  to  the  Constitution"  mere  empty  verbiage  : 

"It  is  not  intended  here  to  decide  that  the  words 
'nor  contrary  to  the  Constitution  of  the  United 
States'  are  meaningless.  Clearly  they  would  be  op- 
erative upon  any  municipal  legislation  thereafter 
adopted,  and  upon  any  proceedings  thereafter  had. 
when  the  application  of  the  Constitution  would  not 

95 


CERTAINTY   AND   JUSTICE 

result  in  the  dcstrnclion  of  cxistiui^  provisions  con- 
ducive to  the  peace  and  good  order  of  the  com- 
munity. Therefore  we  should  answer  without  hesi- 
tation in  the  ncc^ativc  the  question  put  by  counsel 
for  the  petitioner  in  their  brief :  'Would  municipal 
statutes  of  Hawaii,  allowing  a  conviction  of  treason 
on  circumstantial  evidence,  or  on  the  testimony  of 
one  witness,  depriving  a  person  of  liberty  by  the 
will  of  the  legislature  and  without  process,  or  confis- 
cating private  property  for  public  use  without  com- 
pensation, remain  in  force  after  an  annexation  of 
the  Territory  to  the  United  States,  which  was  con- 
ditioned upon  the  extinction  of  all  legislation  con- 
trary to  the  Constitution?'  We  would  even  go 
farther  and  say  that  most,  if  not  all,  the  privileges 
and  immunities  contained  in  the  bill  of  rights  of  the 
Constitution  were  intended  to  apply  from  the  mo- 
ment of  annexation;  but  we  place  our  decision  of 
this  case  upon  the  ground  that  the  tivo  rights  alleged 
to  he  violated  in  this  case  are  not  fundamental  in 
their  nature,  hut  concern  merely  a  method  of  pro- 
cedure which  sixty  years  of  practice  had  shown  to  he 
suited  to  the  conditions  of  the  islands,  and  well  cal- 
culated to  conserz'e  the  rights  of  their  citizens  to 
their  lives,  their  property  and  their  ivell-heing." 

This,  then,  is  the  last  step  in  the  evolution  of  the 
decisions  of  our  highest  tribunal  as  to  the  constitu- 
tional right  to  jury  trial  and  grand  jury  indict- 
ment. It  serves  to  illustrate  the  fact  that 
the  court,  in  interpreting  the  Constitution,  may, 
and  does,  positively  amend  or  change  it.     Other 

96 


CONSTITUTIONAL   DEVELOPMENT 

examples  of  this  process  might  indeed  be  given, 
but  we  doubt  if  there  are  any  which  stand  out 
so  unequivocally  as  the  one  we  have  just  been 
considering. 

What  has  been  said  has  not  been  intended  in  any 
way  as  criticism,  or  as  the  slightest  reflection  upon 
the  judicial  knowledge,  acumen  and  intellectual  in- 
tegrity of  that  great  tribunal.  In  deciding  as  they 
have  done  it  is  probable  that  they  have  acted 
wisely  and  for  the  best  interests  of  the  nation.  It 
is,  however,  necessary  that  we  should  appreciate 
exactly  what  is  taking  place  in  the  domain  of  con- 
stitutional law ;  by  comprehending  the  nature  of  the 
process  and  its  results  we  are  in  a  position  to  criti- 
cize more  intelligently,  since  even  law  courts  are  not 
beyond  the  domain  of  criticism,  which  can  only  be 
useful  when  just  and  intelligent. 

As  a  people  we  have  shown  political  ability  and 
sagacity  of  a  high  order.  Man  is  naturally  a 
political  animal,  although  he  is  many  other  things 
besides,  and  the  English  speaking  political  animal 
seems  to  have  been  the  most  practical  since  the  days 
of  Roman  supremacy.  While  others  have  certainly 
surpassed  him  in  different  departments  of  human 
activity,  such  as  art,  literature  and  philosophy,  they 
have  rarely  or  never  been  able  to  combine  in  the 
same  degree  stability  and  progress  in  matters  of 
government. 

97 


CERTAINTY    AND   JUSTICE 

The  fact  that  we  have  a  written  constitution  is  an 
accident  of  our  history.  But  we  have  developed 
and  changed  it  httle  less  radically  than  the  English 
have  done  their  unwritten  customary  constitution. 
This  result  has  been  reached  through  the  medium 
of  judicial  decision,  save  in  the  case  of  the  three 
amendments  following  our  civil  war  and  designed 
to  perpetuate  its  results. 

But  these  judge-made  changes  have  usually  been 
in  accord  with  and  due  to  the  spirit  of  the  age; 
the  court  really  doing  little  more  than  registering 
the  modifications  of  the  national  common  conscious- 
ness. Hence,  these  changes  in  most  cases  have 
passed  unnoticed. 

Where,  however,  the  Supreme  Court  has  en- 
deavored to  counteract,  if  not  absolutely  to  stem 
a  great  current  of  public  feeling,  as  it  did  in  the 
Dred  Scott  case,  the  decision  has  only  deepened  and 
envenomed  the  conflict  which  it  tried  and  hoped  to 
avert.  When  President  Buchanan  announced  that 
the  expected  decision  of  the  court  in  that  famous 
case  would  solve  the  slavery  question  forever,  he 
did  not  appreciate  the  fact  that  the  prestige  and 
power  of  the  court,  as  of  all  other  branches  of  the 
government,  must  ultimately  rest  upon  its  harmony 
with  the  general  settled  trend  of  public  opinion. 
The  dominant  sentiment  in  favor  of  the  federal 
power  to  tax  incomes  resulted  in  a  re-interpretation 

98 


CONSTITUTIONAL   DEVELOPMENT 

by  the  American  people  of  the  constitutional  clause 
in  the  recent  XVIth  Amendment. 

The  respect  heretofore  shown  by  our  people  for 
the  Constitution,  and  the  almost  veneration  with 
which  they  have  regarded  it,  is  in  itself  a  sentiment 
that  must  be  fostered  and  preserved,  as  the  utility 
of  the  Constitution  and  its  endurance  must  depend 
upon  the  existence  of  such  a  feeling.  Destroy  that 
conservative  sentiment  and  the  Constitution  itself 
would  be  of  little  value. 

The  constitutions  of  South  American  republics 
are  no  guaranty  of  stability,  not  because  of  any 
defect  in  language  or  symmetry,  but  because  the 
institutions  they  attempt  to  create  do  not  com- 
mand the  reverence  and  respect  of  the  nation. 
A  constitution,  like  a  suit  of  clothes,  must  be 
made  with  some  reference  to  the  wearer.  If 
he  live  under  the  tropical  sun  his  apparel,  con- 
stitutional and  otherwise,  must  not  be  over-elab- 
orate. 

The  present  tendency  in  America  is  to  extend 
the  activity  of  government  over  matters  hereto- 
fore left  to  the  individual.  While  the  Supreme 
Court  cannot,  of  course,  remain  oblivious  of,  or 
uninfluenced  by,  this  tremendous  drift  of  opinion, 
it  should  be  careful  not  to  hasten  it  or  go  in  advance 
of  it.  Timely  restraint  may  cause  the  reconsidera- 
tion of  various  half -understood  policies  and  keep 

99 


CERTAINTY   AND   JUSTICE 

our  government  in  the  line  of  evolution  rather  than 
allow  it  to  lapse  into  that  of  revolution. 

Some  of  our  old  institutions  may  have  become 
obsolete,  but  they  cost  many  years  of  effort  and 
much  shedding  of  blood  to  establish,  and  they  should 
not  be  surrendered  without  careful  reflection.  If 
the  constitutional  method  of  amendment  is  over- 
difficult  the  extra-constitutional  method,  useful 
though  it  has  been  and  must  still  be,  should  not 
become  too  easy.  It  is  said,  and  perhaps  truly, 
that  past  generations  should  not  control  the  actions 
of  the  present.  But  before  we  definitely  conclude 
that  our  wisdom  is  so  much  greater  than  that  of 
our  forefathers,  let  us  be  quite  sure  that  we  are 
right.  Above  all,  let  not  the  Bar  delude  itself  with 
fictions  and  official  theories  which  only  "blink  the 
facts."  Fearless  analysis,  not  lazy  acquiescence  or 
unreasoning  vituperation,  were  never  more  needed 
and  seldom  less  practiced.  The  leaders  of  opinion 
cannot  act  intelligently  unless  they  first  think  clearly. 


100 


V 


CRIMINAL  PROCEDURE  AND  THE  CONSTI- 
TUTION 

TJUBLIC  attention  has  recently  been  focused  on 
some  method  of  rendering  our  criminal  law 
more  effective.  Has  the  constitutional  provision 
that  no  man  shall  in  any  criminal  case  be  compelled 
to  be  a  witness  against  himself,  rendered  it  over- 
difficult  for  society  to  protect  itself  against  the 
criminal  class?  If  so,  new  methods  must  be  found 
and  the  Constitution  changed  or  adapted  to  admit 
of  them. 

A  hearty  contempt  for  things  foreign,  in  general, 
and  legal  institutions,  in  particular,  is  probably  a 
healthful  sign  of  national  youth,  of  buoyant  and 
exaggerated  patriotism.  Nations,  like  individuals, 
become  more  self-critical  with  age  and  less  inclined 
to  decry  things  merely  on  the  ground  that  they  are 
foreign.  Whether  the  earlier  is  not  the  happier  and 
stronger  period  I  am  not  sure.  We  Americans, 
however,  as  we  are  so  often  reminded,  arc  living 
in  an  epoch  of  rapid  development.  Increased  facili- 
ties of  communication,  bringing  us  in  closer  contact 
with  nations  on  the  other  side  of  the  water,  have 

lOI 


CERTAINIT    AND   JUSTICE 

tended  to  teach  us  that  we  do  not  monopolize  all 
the  virtue  and  all  the  wisdom  upon  this  planet  and 
that  the  English  common  law  is  not  the  ultimate 
acme  of  human  sapiency,  however  much  the  revered 
Blackstone  may  have  delighted  in  that  pious  thought. 
The  annexation  of  twelve  millions  of  people  living 
under  the  civil  law  has  brought  under  the  American 
flag  institutions  which  we  had  formerly  scarcely 
known,  save  by  caricature.  Nevertheless,  the  youth- 
ful tendency  is  still  strong  in  us,  and  occasionally  the 
national  enthusiasm  seems  aroused  in  unreasonable 
fashion.  It  was  not  long  since  our  press  was 
thundering  away  at  the  monstrous  medievalism  of 
the  French  legal  procedure,  as  instanced  by  the  trial 
of  a  woman  charged  with  the  murder  of  her  mother 
and  husband.  Yet  I  am  convinced  that  the  pro- 
cedure in  that  sensational  case  with  its  picturesque 
background  of  murderers  clad  in  Levitical  garments 
did  not  in  any  essential  particular  deviate  from  the 
methods  usually  prevailing  in  the  French  Court  of 
Assizes.  As  these  have  been  the  methods  daily 
practiced  in  those  courts  since  the  time  of  Napoleon, 
and  in  substance  at  least  some  two  hundred  years 
further  back,  the  impression  of  novelty  made  upon 
the  American  people  by  the  reports  of  the  Steinheil 
case  seemed  somewhat  surprising.  Public  interest 
may  have  been  largely  due  to  the  fact  that  the 
prisoner  at  the  bar  was  a  woman  whose  qualities, 

102 


CRIMINAL   PROCEDURE 

physical  and  mental,  were  far  above  the  average, 
and  whose  past  career  had  been  a  subject  for 
salacious  gossip  in  high  political  circles. 

Despite  all  this,  however,  there  was  one  objective 
upon  which  the  popular  attack  seems  to  have  cen- 
tered as  the  characteristic  of  the  French  system  most 
repugnant  to  American  ideas.  The  fact  that  this 
interesting  woman  was  forced  to  take  the  witness 
stand  and  for  several  days  was  interrogated  in 
mercilessly  hectoring  fashion  by  the  presiding  judge 
is,  of  course,  a  thing  unknown  to  our  common  law 
procedure. 

The  popular  instinct  in  thus  seizing  upon  the  point, 
which  appeared  to  it  so  anomalous,  hit  upon  the 
really  fundamental  distinction  between  the  two  great 
systems  of  criminal  procedure  which  divide  the 
civilized  world — one  a  lineal  descendant  of  the 
Imperial  Roman  procedure,  the  other  purely  English 
in  its  origin  and  development.  In  the  domain  of 
criminal  law  the  world-wide  antithesis  is  between 
the  Roman  or  inquisitorial  system  and  the  English 
or  controversial  system — the  latter  introduced  in 
the  federal  and  state  constitutions  among  the  great 
civil  rights. 

Our  American  lawyers,  taught  by  traditional  piety 
to  believe  that  habeas  corpus  was  the  palladium  of 
our  liberties,  and  that  Rome  and  Carthage  lost  theirs 
only  because  they  had  not  invented  that  admirable 

103 


CKRTAINTY   AND   JUSTICK 

legal  device,  have  been  usually  content  to  dismiss 
the  inquisitorial  system  with  a  contemptuous  shrug 
or  a  violent  epithet.  It  must  thus  have  been  with 
some  astonishment  that  many  an  American  lawyer 
read  the  addresses  of  the  Honorable  William  H. 
Taft  suggesting  that  there  is  much  in  our  criminal 
procedure  that  may  well  have  outlived  its  usefulness, 
and  that  some  of  the  elements  of  the  Latin  procedure 
which  he  had  found  and  studied  in  the  Philippine 
Islands  were  not  without  advantage,  including  the 
interrogation  of  defendants  in  criminal  cases.  I 
dare  say  that  the  most  conservative  stickler  for  the 
common  law  would  not  hesitate  to  question  the  office 
boy  whom  he  suspected  of  pilfering  his  desk  or 
pockets  and  would  assume  this  to  be  the  most  natural 
method  of  ascertaining  the  truth.  Yet  when  society 
wishes  to  protect  itself  against  crime,  this  obvious 
method  becomes  unconstitutional  and  abhorrent. 

In  practice,  nevertheless,  the  "Question"  is  sup- 
posed to  be  very  generally  used  by  the  police  of  the 
larger  cities  for  the  purpose  of  detecting  crime. 
Denunciation  of  the  illegal  character  of  what  is 
popularly  termed  the  "Third  Degree"  has  been  im- 
potent to  check  it  and  this  c.vtra-lega.\  in(iuisitorial 
method  is  believed  to  prevail  quite  generally.  Nor 
would  one  who  has  seen  the  police  or  magistrates' 
courts  in  operation  in  the  cities  find  it  so  difficult 
to  think  himself  in  the  presence  of  a  French  "Juge 

104 


CRIMINAL    PROCEDURE 

d' Instruction."  The  law  of  overruling  necessity 
seems  to  be  making  more  and  more  in  the  direction 
of  our  employing  the  most  obvious  method  of  seek- 
ing the  guilty.  Bentham,  referring  to  the  old 
English  rules  of  evidence,  said  "they  were  admirably 
adapted  to  the  exclusion  of  the  truth."  Many 
lawyers  practicing  in  the  criminal  courts  are  now 
beginning  to  believe  that  the  rule  which  prevents 
the  state  from  compelling  a  person  charged  with 
crime  to  testify  may  well  fall  within  the  same 
category.  Officially,  however,  we  are  still  wedded 
to  the  old  theory. 

Recently  in  our  Spanish  possessions,  Con- 
gress has,  by  statute,  enacted  the  provisions 
of  the  Fifth  Amendment,  so  that  to-day  a 
prisoner  in  those  fortunate  isles  may  no  longer  be 
compelled  to  be  a  witness  against  himself.  I  do 
not  think  sufficient  data  as  yet  available  from  which 
a  judgment  may  be  formed  as  to  the  expediency 
of  this  change  in  the  criminal  law,,  but  it  was  one 
whose  wisdom  has  been  greatly  doubted  by  President 
Taft.  And  we  must,  on  the  other  hand,  remember 
that  for  a  long  time  in  the  United  States,  and  re- 
cently in  England,  the  strict  rule  against  self- 
crimination  has  been  generally  relaxed  by  statute 
and  a  defendant  who  so  wishes  may  now  be  allowed 
to  testify  in  his  own  behalf.  Doubtless  this  modifi- 
cation was   intended   to  enable  an   innocent  man, 

105 


CERTAINTY   AND   JUSTICE 

anxious  for  an  opportunity  to  clear  himself  of 
crime,  to  go  upon  the  witness  stand.  I  am  inclined 
to  believe,  however,  that  the  unforeseen,  but  inevita- 
bly logical,  consequence  must  be  to  destroy  the  value 
(if  any  there  be  to-day)  of  the  constitutional  guar- 
antee that  no  man  shall  be  compelled  to  be  a  wit- 
ness against  himself.  The  statutes  now  provide, 
and  judges  must  charge,  that  no  presumption  is  to 
be  derived  from  the  failure  of  the  prisoner  to  testify 
in  his  own  behalf,  yet  juries  will  still  be  human, 
and  even  the  legislature  cannot  always  reverse  the 
rules  of  human  ratiocination.  The  recent  Ohio  con- 
stitution expressly  provides  that  the  prosecution  may 
comment  upon  the  defendant's  abstention  from  the 
witness  chair  and  thus  by  indirection  deprives  the 
privilege  of  value. 

This  departure  from  the  common  law  marks,  to 
my  mind,  a  long  step  toward  bridging  the  chasm  be- 
tween the  inquisitorial  system  and  our  own. 

The  leading  features  of  English- American  crim- 
inal law  are  its  litigious  or  controversial  nature  and 
the  institution  of  jury  trial,  about  which  its  whole 
procedure  grew  up.  Jury  trial,  however,  has  ceased 
to  be  a  sacrosanct  institution;  in  several  of  our 
jurisdictions  information  by  the  public  prosecutor, 
has  taken  the  place  of  indictment  by  grand  jury, 
and  unanimity  has  made  way  for  a  majority  verdict. 
As  the  continental  nations  have  adopted  the  English 

jo6 


CRIIVIINAL    PROCEDURE 

jury  as  a  body  for  trying  the  facts  in  important 
criminal  cases,  the  fundamental  remaining  distinc- 
tion between  the  two  systems  is  this  :  In  the  French 
system  the  initiative  in  and  conduct  of  criminal 
cases  belongs  wholly  to  the  courts  (C.  C.  I.,  Art.  i )  ; 
the  procedure  is  not  really  in  the  nature  of  a  law- 
suit, but  is  rather  an  investigation  conducted  by 
the  government  officers  for  the  purpose  of  detecting 
criminality.  The  English  procedure,  on  the  other 
hand,  still  smacks  of  its  Germanic  origin  in  retaining 
the  character  of  an  ordinary  lawsuit,  in  which  the 
plaintiff  must  prove  his  case  against  the  defendant 
in  practically  the  same  manner  as  he  must  do  in  a 
civil  case,  with  the  additional  burden  that  in  the 
criminal  case  a  plaintiff  cannot  put  the  defendant 
on  the  stand  as  he  may  now  do  in  civil  cases. 

Popular  prejudices  usually  have  ancient  origins. 
Surely,  much  of  the  popular  dislike  for  compulsory 
examination  of  defendants  is  due  to  the  association 
of  the  inquisitorial  idea  with  that  secret  and  awful 
tribunal  which  in  the  Middle  Ages  sought  to  secure 
religious  uniformity  by  the  liberal  application  of 
the  "Question."  While  it  is  true  that  neither  the 
medieval  nor  the  Spanish  Inquisition  originated  the 
procedure  there  employed,  which  was  derived  from 
the  Roman  law,  it  nevertheless  applied  it  in  much 
more  arbitrary  fashion,  and  to  the  exaggeration  of 
its  defects  added  torture  as  a  leading  feature.    Con- 

107 


CER'l'AIN'lY    AND   JUSTICE 

sidercd  apart  from  nictliods,  however,  there  is 
nothinj^  repugnant  to  enlightened  justice  in  a  mere 
oral  public  examination  of  the  defendant  in  a  crim- 
inal case. 

The  I'Tench  system  offers  to-day  the  best  anti- 
thesis to  the  system  which  our  constitutional  prohi- 
bitions have  crystallized  and  an  examination  of  its 
elements  will  furnish,  perhaps,  the  best  illustration 
of  the  modification,  which  might  be  made  in  our 
own  were  it  not  for  a  constitutional  restriction 
whose  wisdom  is  to-day  very  questionable. 

I  cannot  attempt  to  give  here  anything  more  than 
the  roughest  outline  of  the  French  procedure.  The 
French  criminal  law  is  codified  in  admirably  lucid 
and  logical  fashion  in  two  codes — the  Code  of 
Criminal  Instruction  {Code  d' Instruction  Crim- 
inelle),  and  the  Code  Penal,  the  first  treating  of 
the  procedure  in  the  criminal  courts,  and  the  second 
defining  crimes  and  prescribing  corresponding  pun- 
ishments. While  both  of  these  codes  were  enacted 
under  the  master  hand  that  re-created  and  re- framed 
French  institutions  during  the  first  ten  years  of  the 
last  century,  yet  nearly  all  their  leading  features 
antedate  Napoleon. 

The  origin  of  the  French  criminal  law  goes  back 
to  the  Roman  law.  The  criminal  law  of  the  later 
Roman  Republic  and  early  Empire  was  like  our 
own,  controversial  or  litigious ;   the  private  party 

io8 


CRIMINAL    PROCEDURE 

was  plaintiff  and  the  facts  were  submitted  to  a  jury 
or  commission,  the  Judex  merely  acting  as  a  referee, 
and  charging  the  law. 

With  the  growth  of  Rome  and  the  enormous 
influx  of  various  peoples  from  all  parts  of  the 
Mediterranean  basin,  there  grew  up  a  considerable 
criminal  class,  even  more  formidable,  perhaps,  than 
any  we  have  yet  developed  in  our  own  metropolitan 
slums.  Probably  owing  to  this,  the  methods  of 
criminal  procedure  underwent  a  radical  change. 
The  City  Praetor,  charged  with  general  police 
surveillance  of  the  city,  seems  to  have  absorbed  to 
himself  during  the  first  and  second  centuries  all 
criminal  jurisdiction,  and  the  older  methods  were 
superseded  by  those  in  vogue  in  his  courts.  The 
procedure  there  was  inquisitorial,  the  police  au- 
thorities themselves  initiating  the  proceedings  and 
the  judge  deciding  the  whole  case,  both  fact  and 
law.  This  method,  by  which  one  judge  sitting  in 
secret,  examined  the  defendant  and  witnesses  at 
the  instigation  of  the  government  was  called 
"Inquisitio."  It  seems  to  have  become  more  arbi- 
trary as  time  went  on.  In  the  western  portion  of 
the  Empire  it  was  superseded  by  the  customs  of 
the  Germanic  tribes.  The  ordeal,  compurgation, 
trial  by  battle,  etc.,  took  the  place  of  a  procedure, 
which,  whatever  its  defects,  was  at  least  rational, 
that  is  to  say,  based  upcMi  an  endeavor  to  ascertain 

109 


CERTAINTY   AND   JUSTICE 

the  facts  by  methods  of  imniiry  founded  upon  human 
reason. 

With  the  growth  of  the  French  monarchy,  the 
action  of  the  French  royal  courts  was  extended  and 
at  the  same  time  this  rational  procedure  gradually 
superseded  the  Germanic  procedure  whose  continued 
existence  was  rajjidly  becoming  incompatible  with 
growing  civilization.  In  developing  a  procedure  for 
the  royal  courts,  the  Crown  naturally  looked  to  the 
ecclesiastical  courts  where  the  Roman  procedure 
still  continued  in  force.  This  procedure  was  codified 
in  an  important  ordinance  in  1539  by  Francis  I, 
and  again  in  a  more  complete  and  elaborate  codifica- 
tion in  the  great  ordinance  of  Louis  XIV's  famous 
minister,  Colbert  (1690),  which  continued  to  be 
the  basis  of  criminal  procedure  down  to  the  time 
of  the  Revolution. 

At  the  Revolution,  laws  were  passed  to  wholly 
remodel  French  procedure,  making  it  public,  sim- 
plifying it  and  providing  jury  trial,  as  well  as  hav- 
ing citizens  sit  with  the  judges.  The  law  was  for 
a  time  in  very  uncertain  condition  until  Napoleon 
undertook  its  comprehensive  codification.  He  had 
little  sympathy  with  the  jury  system  so  that  his 
Code  d'Instruction  CrimincUc  (1809)  was  highly 
reactionary.  It  is  true  a  jury  was  provided  for,  but 
it  was  merely  superimposed  upon  the  already  exist- 
ing structure  and  did  not  harmonize  with  it.    Jury 

no 


CRIMINAL    PROCEDURE 

panels  were  taken  from  a  very  small  class,  and  the 
expectations  of  the  men  of  the  Revolution  that  the 
procedure  of  the  old  regime  would  be  wholly 
changed  were  completely  frustrated.  The  legal 
habits  of  centuries  cannot  be  permanently  changed 
by  revolution  and  the  Code  d' Instruction  Criminclle 
is  still  very  largely  founded  upon  the  ordinance  of 
1690.  This  code  has  been  subject  to  alteration  from 
time  to  time,  and  was  revised  in  1834,  although  the 
changes  were  not  very  material. 

The  Code  of  Criminal  Instruction  contains  643 
paragraphs.  This  code  defines  the  organization  of 
the  courts,  their  jurisdiction  and  the  procedure  to 
be  followed  therein.  The  first  book  contains  but 
one  title  and  is  concerned  with  the  "judicial  police" 
{police  jiidiciaire)  and  the  officers  who  exercise 
such  police  duties.  The  second  book  treats  of  the 
procedure  in  the  criminal  courts,  and  is  composed 
of  seven  titles,  respectively : 

First — Tribunals  of  police. 

Second — Matters  which  must  be  submitted  to  a 
jury. 

Third — Methods  of  appeal. 

Fourth — Procedure  in  certain  special  classes  of 
cases. 

Fifth — Removal  of  causes. 

Sixth — Special  courts. 


CERTAINTY   AND   JUSTICE 

Seventh — Certain  matters  of  public  interest  and 
social  safety. 

The  inquisitorial  nature  of  the  French  procedure 
is  indicated  by  the  first  article  of  the  preliminary 
dispositions  ef  the  code  which  provides  that  the 
right  to  initiate  proceedings  resulting  in  the  inflic- 
tion of  punishments,  belongs  solely  to  the  govern- 
ment officers  to  whom  it  is  intrusted  by  law  (C.  C. 
I.,  Art.  i).  Where  a  crime  is  also  a  tort,  the  party 
injured  may  bring  his  action  be  fere  the  same  tri- 
bunal as  that  which  hears  the  criminal  case  (par tie 
civile),  and  the  two  may  be  heard  together.  This 
is  a  proceeding  which  from  the  standpoint  of 
economy  and  efficiency  has  much  to  recommend  it. 

There  are  three  classes  of  infractions  of  criminal 
law.  They  are  defined  in  the  Penal  Code  (Art.  i, 
et.  seq.)  as  contraventions,  delicts  and  crimes.  Con- 
traventions are  petty  offenses  justiciable  in  the 
smaller  magistrate  or  police  courts,  subjecting  the 
culprit  to  small  fines  or  a  few  days'  imprisonment. 
Delicts  are  punished  in  the  court  called  "Police 
Correctionel"  and  are  subject  to  fines  and  a  term 
of  imprisonment  not  exceeding  five  years. 

The  body  called  the  "Magistratiirc"  differs  from 
anything  we  have  in  this  country  in  that  it  includes 
not  only  all  the  judges  but  also  the  body  of  public 
prosecutors.     The  procurcurs   (district  attorneys) 

112 


CRIMINAL    PROCEDURE 

constitute  a  part  of  the  Magisfrature  and  are  called 
"The  Magistrafure  Deboitt  (standing) ."  They  have 
much  wider  powers  than  our  district  attorneys  and 
exercise  quasi-judicial  functions.  They  are  charged 
with  the  discovery  and  prosecution  of  crime,  and 
they,  with  the  M aires.  Gardes  CJiampetres  (Rural 
Police),  Jiiges  de  Paix,  Officers  of  the  Gendar- 
merie, Comviissaires  Gc'neraux  and  Juge  d' In- 
struction compose  the  police  judiciary. 

In  each  district  there  is  a  Juge  d'In<;trucfion, 
nominated  for  a  period  of  three  years  by  the  Presi- 
dent. Save  in  case  of  open  breach  of  the  peace,  he 
does  not  himself  initiate  prosecutions  but  waits  to 
receive  complaints  from  the  proctireur. 

The  proceeding  before  the  Judge  of  Instruction 
is  probably  the  most  characteristic  portion  of  the 
French  procedure.  The  prisoner  is  brought  before 
the  judge  in  his  chamber  and  testifies,  without  the 
presence  of  the  other  witnesses.  The  hearings  are 
secret,  and  until  1897  the  prisoner  was  not  entitled 
to  counsel.  By  a  law  of  that  date,  however,  he 
now  possesses  the  right  to  recjuest  to  have  such 
counsel  as  he  may  designate  to  represent  him  or 
in  case  of  his  failure  to  do  so,  counsel  will  be  ap- 
pointed by  the  court.  Provision  has  also  been  made 
by  the  same  law  that  he  should  be  informed  of  the 
documentary  evidence  against  him.  The  witnesses 
are  sworn,  interrogated  and  their  answers  reduced 

113 


CKRTAINIT   AND   JUSTICE 

to  writing.  They  are  examined  separately.  Per- 
sons must  ])C  examined  within  twenty-four  hours 
after  they  have  been  arrested,  otherwise  they  will 
be  considered  as  illegally  detained.  The  Judge  of 
Instruction  may,  and  in  some  cases  must,  grant 
bail,  but  the  code  seems  to  leave  the  matter  very 
largely  to  his  discretion  where  the  penalty  for  the 
crime  charged  is  more  than  two  years'  imprison- 
ment. (C.  C.  I.,  113.)  In  practice,  bail  is  rarely 
asked  for  or  granted,  owing  chiefly  to  the  fact 
that  arrest  is  made  only  after  the  judge  has  examined 
into  the  case  sufficiently  to  warrant  such  arrest. 

The  judge  examines  fully  the  prisoner  and  all 
the  witnesses,  and  if  he  deems  it  advisable,  visits 
the  spot  where  the  alleged  crime  was  committed. 
He  is  given  full  power  to  search  houses,  papers, 
and  general  effects  of  suspected  persons  (perquisi- 
tion). This  is  one  of  the  most  drastic  provisions 
of  the  French  code  and  most  at  variance  with  our 
legal  ideas.  Immunity  from  search  and  seizure  as 
a  general  right  is  quite  unknown  in  France.  The 
code  provides  (Sect.  87)  :  "That  the  Judge  of 
Instruction  may  betake  himself  wherever  his  pres- 
ence is  required,  and  may,  even  of  his  own  initiative, 
go  to  the  domicile  of  the  arrested  party,  to  there 
make  a  search  (perquisition)  of  the  papers,  effects 
and  generally  of  all  those  articles  which  may  be 
thought  useful    for   the   disclosure  of   the   truth." 

114 


CRIMINAL   PROCEDURE 

Provision  is  also  made  that  he  may  search  in  what- 
ever other  place  he  may  believe  evidenciary  matter 
to  be  contained.  If  such  papers  or  objects  are 
without  his  arrondissement  he  may  call  upon  the 
judge  in  whose  arrondissement  they  are  to  make 
examination.  One  cannot  help  contrasting  this  very 
broad  power  with  the  rulings  of  our  courts  under 
the  Fourth  Amendment  to  the  Constitution.  The 
elaborate  reasoning  in  Adorns  v.  New  York  (192 
U.  S.,  585)  in  which  the  Supreme  Court  held  that 
incriminating  articles,  although  unlawfully  seized  by 
the  police,  were  not  thereby  made  inadmissible  as 
evidence,  would  probably  cause  a  French  lawyer 
to  feel  the  same  kind  of  bewildered  interest  which 
we  do  in  studying  the  tribal  customs  of  the 
Patagonians.  The  most  natural  thing  that  a 
French  procureur  and  Jiige  d'lnstruction  would 
think  of  would  be  to  search  for  evidence  the 
place  where  the  perpetration  of  crime  was  sus- 
pected. 

Whether  from  the  standpoint  of  social  efficiency 
this  system  is  not  on  the  whole  better  than  our  own, 
I  seriously  question.  In  any  event,  I  think  that 
an  examination  of  our  decisions  will  show  that  we 
are  restricting  and  limiting,  rather  than  broadening, 
the  prohibition  against  searches  and  seizures  which 
grew  out  of  political  conditions  wholly  different 
from    our    own,    and    which,    strictly    interpreted, 

115 


CERTAINTY   AND   JUSTICE 

render  it  much  easier  for  the  criminal  class  to  carry 
on  their  a\'ocati(jn.' 

If,  after  the  conclusion  of  the  examination  the 
Jiigc  d' Instruction  is  of  the  opinion  either  that  the 
facts  adduced  do  not  make  out  any  crime  or  that 
there  is  not  sufficient  evidence  against  the  person 
charged,  he  then  decrees  that  there  is  no  ground  for 
prosecution  {non  lieu  a  ponrsuivre)  and  the  prisoner 
is  released.  If,  on  the  other  hand,  he  finds  that 
the  criminal  law  has  been  violated,  he  must  then 
decide  whether  such  violation  constitutes  a  contra- 
vention or  a  delict.  If  the  former,  he  will  send 
the  record  (dossier)  to  one  of  the  minor  police 
courts;  if  the  latter,  to  the  Tribu)ial  Correctionel 
for  trial  there. 

Should  he,  however,  find  that  the  act  is  of  so 
serious  a  character  as  to  constitute  a  felony  (that 
is  to  say,  a  crime  for  which  "pcines  afflictizcs  ou 
infamantes"  are  the  punishment),  he  sends  the 
dossier  (record)  to  the  Procureur  General  at  the 
Court  of  Appeal  of  the  district  in  which  the  crime 
was  committed. 

This  court  is  the  regular  body  which  hears  all 
appeals  in  civil  cases  and  also  possesses  criminal 
jurisdiction.  One  of  the  chambers  or  divisions  of 
this   court   is   called   "La   Chamhre   des  Mises   en 

*  Twining  v.  New  Jersey,  211  U.  S.,  78,  103;  Wilson  v.  U.  S., 
221  U.  S.,  361. 

116 


CRIMINAL    PROCEDURE 

Accusation."  This  subdivision  of  the  Court  of  Ap- 
peal decides  upon  the  dossier  whether  the  prisoner 
shall  be  sent  to  the  Court  of  Assizes.  This  chamber 
is  really  an  indicting  body.  It  may  either  concur 
with  the  Prociirciir  and  send  the  prisoner  to  be 
tried  by  jury,  or  it  may  decide  that  the  case  is  one 
falling  within  the  jurisdiction  of  one  of  the  police 
tribunals.  An  appeal  lies  from  the  action  of  the 
Chamber. 

If  the  Chamber  holds  that  the  crime  is  one  to  be 
tried  at  the  Court  of  Assizes,  the  Procurciir  General 
then  prepares  the  document  called  "Acte  d' Accusa- 
tion," corresponding  somewhat  to  our  own  indict- 
ment. This  "Acte  d' Accusation"  drawn  up  by  the 
Procurcur  himself,  contains  a  summary  of  all  the 
evidence  taken  before  the  Jnge  d' Instruction.  It 
is  usually  a  somewhat  long  and  denunciatory  paper. 
The  prisoner  is  then  brought  for  trial  before  the 
Court  of  Assizes.  The  president  of  the  Court  of 
Assizes  is  selected  from  among  the  judges  of  the 
Court  of  Appeal  and  has,  as  assistant  judges,  two 
judges  of  the  Court  of  First  Instance,  of  the  place 
where  the  Court  of  Assizes  is  sitting.  In  addition 
to  the  judges,  there  is  a  jury  of  twelve  men  drawn 
from  a  jury  list.  They  are  not  held  to  the  rule  of 
unanimity,  but  decide  by  majority  vote,  the  result 
being  announced  without  dissent. 

The  trial  is  public.  It  opens  by  the  appearance 
117 


CERTAINTY   AND   JUSTICE 

of  the  accused  and  his  being  asked  by  the  president 
his  name,  age,  etc.  An  interesting  episode  then 
occurs.  Section  311  of  the  Code  provides  that: 
"The  president  shall  admonish  counsel  for  the  ac- 
cused that  he  can  say  nothing  contrary  to  his  con- 
science or  contrary  to  the  respect  due  to  the  laws 
and  that  he  must  express  himself  with  decorum  and 
moderation."  A  provision  of  this  kind  inserted  into 
our  criminal  codes  might  not  be  without  good  effect, 
nor  without  reason.  The  jury  is  then  sworn,  and 
the  clerk  reads  the  Actc  d' Accusation.  The  Pro- 
cureiir  opens  the  case  and  reads  the  list  of  witnesses 
who  have  been  summoned,  whether  for  the  state, 
the  accused,  or  for  the  civil  plaintiff.  The  names 
of  these  witnesses  must  have  been  communicated  by 
the  party  calling  them,  to  the  other  parties  interested 
at  least  twenty-four  hours  before  the  first  examina- 
tion. While  this  restrictive  list  might  prevent  all 
the  witnesses  who  had  not  testified  before  the  Juge 
d'  Instruction  from  appearing  at  the  trial,  provision 
is  made  (Sect.  269)  by  which  the  court  may  at  any 
time  of  its  own  motion  summon  any  witness  whose 
testimony  it  deems  material. 

The  accused  is  now  examined.  This  examination 
usually  takes  a  very  wide  range  as  his  whole  life 
history  which  has  been  thoroughly  developed  before 
the  Jiige  d'  Instruction  is  gone  over  by  the  president. 
There  are  no  rules  of  relevancy  and  only  a  few  of 

118 


CRIMINAL    PROCEDURE 

competency,  such  as  that  prohibiting  persons  closely 
related  from  testifying  against  each  other.  (C.  C. 
I.,  322.)  Section  270  of  the  Code  provides  that 
the  president  may  prohibit  all  matter  which  may 
tend  to  prolong  the  discussion  (dcbats),  without 
furnishing  any  greater  hope  of  certainty  in  the  re- 
sults. In  the  Steinheil  case,  the  president  began 
his  interrogatory  of  ]\Ime.  Steinheil,  which  lasted 
over  several  days,  by  asking  her  as  to  some  alleged 
elopement  which  had  occurred  twenty  years  before 
the  date  of  the  crime.  The  whole  of  the  first  day's 
hearing  was  taken  up  with  her  history,  and  was  a 
long  wrangle  in  which  the  witness  was  allowed  to 
answer  what,  and  as  much  as  she  pleased,  and  in 
which  dialectic  honors  did  not  always  remain  with 
the  president. 

Cross-examination  as  such  is  unknown,  and  the 
witnesses  are  questioned  by  the  president,  although 
the  Procureur  General  or  members  of  the  jury  may, 
by  obtaining  permission  of  the  president,  ask  ques- 
tions. It  is  curiously  enough  specifically  provided 
(Sect.  39),  that  witnesses  may  not  be  interrupted. 
Opportunity  is  thus  given  a  witness  to  tell  his  whole 
story  to  the  jury  which  has  perhaps  some  advantages 
over  our  method  of  categoric  question  and  answer. 
The  accused  or  his  counsel  may  question  him  by 
the  voice  of  the  president  (I'organe  du  President), 
when  his  deposition  is  concluded,  and  may  say  any- 

119 


CERTAINTY   AND   JUSTICE 

thing  against  him  or  against  his  testimony  which 
he  may  think  useful  to  the  case.  The  examina- 
tion of  witnesses  having  ended,  the  case  is  then 
presented  to  the  jury.  The  Procurcur  General 
sjieaks  first,  and  the  accused  and  his  counsel  have 
the  last  word.  This  is  a  very  great  advantage  for 
the  accused,  which  has  been  pretty  generally  over- 
looked in  the  sweeping  criticisms  made  of  the  French 
law. 

The  president  is  no  longer  allowed  to  sum  up  to 
the  jury.  He  merely  calls  their  attention  to  the 
functions  which  the  law  imposes  upon  them  and  he 
asks  them  to  pass  upon  the  question  whether  the 
accused  is  guilty  of  having  committed  such  and 
such  crime,  together  with  the  circumstances  included 
within  the  Acte  d' Accusation.  Sometimes  the  ques- 
tions are  very  numerous;  I  have  known  in  a  case 
at  which  I  was  present,  the  jury  to  be  asked  to 
pass  upon  twenty-four  questions.  General  verdicts 
are  unknown ;  all  verdicts  are  special.  The  Court 
of  Cassation  has  held  that  the  president  must  put 
to  the  jury  a  distinct  question  as  to  every  principal 
allegation  of  the  accusation.     (C.  C.  I..  2)Z7-) 

The  jury  is  also  called  upon  to  pass  upon  the  ques- 
tion as  to  whether  there  exist  attenuating  circum- 
stances {circonstances  attennantcs) .  This  right  or 
"privilege  upon  the  part  of  the  jury  has  been  much 
criticized  in  France  as  in  cases  of  heinous  and  cold- 

120 


CRIMINAL    PROCEDURE 

blooded  crimes,  a  verdict  of  circonstanccs  attcnuan- 
tes  is  often  rendered.  I  attribute  this,  however, 
in  great  part  to  two  circumstances.  First,  the  grow- 
ing dislike  of  the  death  penalty  felt  in  France,  and 
second,  that  as  the  verdict  is  by  majority  vote,  it 
is  often  due  to  compromise.  The  "attenuation"  is 
probably  frequently  found  not  in  the  crime,  but  in 
the  evidence  as  to  its  commission.  In  this  country, 
juries  often  seem  to  reach  the  same  result  by  find- 
ing a  lower  degree  of  crime.  There  are  so  many 
circumstances  attenuating  guilt  which  the  law  can- 
not recognize  or  classify,  I  am  inclined  to  think 
that  the  circonstances  attenuantes  method  is  not  on 
the  whole  a  bad  one.  The  questions  of  the  presi- 
dent are  written  out  and  given  to  the  jury,  to- 
gether with  the  Act  of  Accusation  and  the  evidence. 
The  jury  is  then  informed  that  they  are  to  decide 
the  case,  not  according  to  any  mechanical  rule  as 
to  number  of  witnesses,  but  by  asking  themselves 
the  question  whether  they  have  a  firm  conviction 
as  to  the  guilt  or  innocence  of  the  prisoner.  {Avcs- 
voiis  tine  Intime  Conviction?)  (C.  C.  I.,  342,) 
The  verdict  is  then  rendered  by  majority  vote,  but 
the  number  of  votes  cannot  be  declared  under  i)en- 
alty  of  nullifying  the  judgment. 

If  the  accused  is  found  guilty  and  the  court  is 
convinced  that  although  there  are  no  errors  of 
form,  yet  the  jury  have  made  a  fundamental  mis- 

121 


CERTAINTY   AND   JUSTICE 

take,  it  has  power  to  grant  a  new  trial.  It  must 
be  rcmeiiibered  that  throughout  the  trial,  the  civil 
plaintiff  is  represented  by  his  counsel  and  that  the 
verdict  also  includes  the  question  of  whether  the 
plaintiff  has  been  damaged  by  the  tort. 

An  elaborate  system  of  appeal  both  to  the  Court 
of  Appeal  and  the  Court  of  Cassation  exists.  In 
addition,  a  revision  or  a  new  trial  may  be  asked 
for,  on  the  ground  of  newly  discovered  evidence, 
perjury  of  the  witnesses  or  of  another  criminal 
judgment,  inconsistent  with  the  guilt  of  the  defend- 
ant.    (C  C.  I.,  443-) 

The  jurisdiction  over  crimes  whose  punishment 
exceeds  five  days  imprisonment  and  fifteen  francs 
penalty  is  confided  to  the  Police  Correctionel  Courts 
which  are  also  the  tribunals  of  first  instance,  having 
general  civil  jurisdiction.  These  tribunals  are  com- 
posed of  three  judges.  (C.  C.  I.,  179-180.)  Their 
sessions  are  public  and  the  procedure  is  similar  to 
that  of  the  Court  of  Assizes,  minus  the  features 
peculiar  to  the  jury.  From  these  courts,  appeal  lies 
to  the  Courts  of  Appeal.  These  latter  courts  have 
full  jurisdiction  virtually  to  retry  the  case  and  to 
enter  any  judgment  they  may  think  comformable 
to  law  and  justice.  They  may,  and  often  do,  in- 
crease or  diminish  the  penalty,  or  they  may  hold 
that  the  accused  should  have  been  held  for  the 
Assizes.     This  broad  appellate  jurisdiction  is  not 

122 


CRIMINAL   PROCEDURE 

unknown  under  the  American  flag,  for  in  the 
PhiHppine  Islands  we  have  the  same  system,  and 
the  Supreme  Court  in  a  very  recent  interesting  case, 
held  that  a  prisoner  was  not  placed  twice  in  jeopardy 
within  the  meaning  of  the  constitutional  guarantee, 
because  of  the  fact  that  upon  his  own  appeal  his 
punishment  had  been  greatly  increased.  {Trono  v. 
U.  S.,  199  U.  S.,  521.)  Where  there  is  no  jury,  as 
in  the  Correctionel  Courts,  this  seems  to  be  a  wise 
and  humane  system.  No  reason  exists  in  the  al> 
sence  of  jury  trial  for  not  according  such  a  broad 
power  to  the  court  on  appeal. 

A  pretty  general  discussion  of  foreign  criminal 
procedure  would  seem  not  inopportune  in  America 
at  the  present  time.  It  is  clear  that  certain  features 
of  the  French  procedure  are  entirely  inimical  to 
our  ideas,  but  I  am  inclined  to  think  that  in  final 
analysis,  our  objection  is  rather  to  the  methods  than 
to  the  fundamental  principles.  The  essential  feature 
of  the  inquisitorial  system,  namely,  the  examination 
of  the  party  charged  with  crime,  is  certainly  based 
upon  a  sound,  common-sense  view.  Whenever  or 
wherever  any  kind  of  investigation  is  held,  and  real 
knowledge  of  all  the  facts  is  desired,  the  parties 
most  cognizant  of  the  transactions  are  examined. 

The  rule  as  to  incompetency  of  parties  in  civil 
cases  has  long  since  been  abolished.  I  find  it  dif- 
ficult to  see  why  the  old  rule  should  be  retained 

123 


CERTAINTY   AND   JUSTICE 

in  criminal  cases.  It  prew  iij)  in  a  time  when  ex- 
amination of  the  j)arties  meant  interrogation  ac- 
companied by  the  application  of  various  ingenious 
devices  for  the  purposes  of  extorting  confession  by 
producing  the  maximum  of  physical  pain.  That  a 
morally  developing  society  should  finally  revolt 
against  this  hideous  barbarism  by  abolishing  "the 
question,"  was  quite  natural. 

As  Stephen,  the  historian  of  the  English  criminal 
law,  has  said :  "In  the  seventeenth  century  the 
accepted  maxim  which  was  sometimes  called  the 
Law  of  God,  and  sometimes  the  Common  Law  of 
England,  was  'nemo  tcnctur  accusarc  sc  ipsinn.' 
A  phrase  not  the  less  influential  because  it 
rested  on  no  definite  authority."  Of  course,  the 
self-accusation  there  mentioned  was  that  which 
was  produced  by  torture,  a  thing  unknown  to 
the  Roman  law  in  its  better  days,  and  in  no  wise 
necessarily  connected  with  the  examination  of  the 
prisoner.  The  medieval  theory  seems  to  have  been 
that  the  only  complete  proof  of  the  commission  of 
crime  was  the  confession  of  the  culprit  and  that 
such  confession,  however  superinduced,  was  the 
necessary  basis  for  conviction.  It  was  only  in  the 
eighteenth  century  in  England  that  the  practice 
of  questioning  a  defendant  on  his  trial  was  entirely 
done  away  with. 

As  the  rule  stands  in  common  law  countries  to- 
124 


CRIMINAL    PROCEDURE 

day,  it  appears  to  me  to  give  the  guilty  an  unfair 
advantage.  That  the  privilege  of  testifying  may  be, 
and  usually  is  of  assistance  to  the  innocent  is  evident 
from  the  fact  that  the  prohibition  against  the  witness 
appearing  in  his  own  behalf  has  been  removed. 

I  do  not  mean,  however,  to  wholly  approve  the 
French  methods.  It  is  one  thing  to  have  a  party 
after  he  has  been  fully  apprised  of  the  nature  of 
the  crimes  charged,  and  the  evidence  against  him, 
put  upon  the  witness  stand  and  examined  by  the 
prosecutor,  with  an  opportunity  for  a  re-examinati<jn 
by  his  counsel,  and  quite  another  to  have  him 
brought  before  a  magistrate,  questioned  at  the  dis- 
cretion of  that  magistrate  and  then  again  questioned 
at  his  trial  by  the  president  of  the  tribunal.  This 
latter  proceeding  certainly  lacks  the  dignity  which 
makes  of  the  judge  an  impartial  arbiter,  and  must 
often  work  great  injustice  in  the  case  of  a  sensitive 
or  timid  defendant.  Much  criticism  has  been  excited 
in  France  of  recent  years  by  the  practice  which 
permits  the  president  to  conduct  the  examinations 
during  the  trial.  Some  French  lawyers  believe  this 
to  be  contrary  to  the  law,  but  the  pnjvision  of  the 
code  (319)  would  seem  to  indicate  that  all  questions 
must  be  addressed  by  the  voice  of  the  president 
(par  I'organe  du  President).  The  Ministry  of 
Justice  asked  for  and  obtained  an  amendment  of 
the  criminal  code  by  which  the  president  will  be 

125 


CERTAINTY   AND   JUSTICE 

relieved  of  this  duty,  and  questions  will  be  asked 
by  both  prosecution  and  defense.  This  may  well 
lead  in  time  to  the  development  of  cross-examina- 
tion, a  thing  hitherto  unknown  to  the  French  law, 
and  which  is  certainly,  within  reasonable  limits,  a 
very  valuable  device  for  the  sifting  of  testimony. 

Whether  the  French  system  as  a  whole  is  more 
efficient  in  the  repression  of  crime  than  our  own, 
I  do  not  know,  and  I  doubt  whether  the  question 
can  be  answered  positively.  It  is  an  outgrowth  of 
French  society  and  conforms  to  French  needs  and 
views.  With  slight  modification  such  as  is  now 
recommended,  I  see  nothing  in  it  incompatible  with 
a  fair  and  efficient  administration  of  the  criminal 
law. 

It  has  long  been  a  maxim  of  the  English 
criminal  law  that  it  were  better  that  ninety-nine 
guilty  men  should  escape  than  that  one  innocent 
man  should  suffer.  Whether  this  is  sound  from  the 
social  standpoint  may  be  greatly  doubted,  but  certain 
it  is  that  a  criminal  law  so  framed  and  administered 
as  to  allow  the  escape  of  ninety-nine  per  cent  or 
any  considerable  percentage  of  criminals,  would  be 
an  inefficient  safeguard  for  modern  society.  That 
the  delays  and  technicalities  of  the  criminal  law 
have  become  in  America  a  shocking  abuse  is  mani- 
fest and  admitted.  The  appalling  prominence  of 
"Judge  Lynch"  cannot  be  dismissed  with  a  mere 

126 


CRIMINAL    PROCEDURE 

phrase  as  to  American  lawlessness,  but  the  paralysis 
of  legal  procedure  due  to  over-emphasis  of  indi- 
vidual rights,  as  opposed  to  the  collective  good,  must 
be  held  largely  responsible.  It  is  also  unfortunate 
that  the  prestige  of  the  constitutional  system  should 
longer  be  impaired  by  the  retention  of  this  right 
against  self-crimination.  It  should  be  abolished  or 
very  much  modified.  It  has  no  longer  any  raison 
d'etre. 

Undoubtedly  the  jury  system,  the  public  nature 
of  all  trials  and  examinations  of  prisoners,  and  the 
litigious  as  distinguished  from  the  inquisitorial 
method  of  procedure  are  valuable  acquisitions  which 
American  law  should  not  lightly  surrender.  It 
verges,  however,  upon  the  absurd  to  turn  respect 
for  old  rules  or  maxims  into  mere  fetish  worship. 
The  rule  against  compelling  examination  of  parties 
in  criminal  cases  may  well  be  thought  to  have  out- 
lived its  usefulness.  It  is  of  no  value  to  the  innocent, 
and  highly  detrimental  to  society  in  its  war  against 
crime.  Must  we  continue  to  maintain  it  because 
some  hundreds  of  years  ago  its  violation  was  ac- 
companied with  incidents  whicli  have  disappeared 
as  completely  as  have  trial  by  battle,  or  the  ordeal 
of  walking  upon  red  hot  iron  as  a  satisfactory  test 
for  the  ascertainment  of  criminality? 

If  the  French  legislator  has  been  wise  and  liberal 
enough  to  borrow  our  jury  system,  may  we  not  in 

127 


CERTAINTY   AND   JUSTICE 

turn  ^ain  somelhiiif^  by  examining];-  in  sympathetic 
spirit  a  system  which  has  been  worked  out  by  the 
best  legal  minds  of  Continental  Europe? 

Increase  in  crimes  of  violence,  epidemics  of  com- 
mercial fraud  and  g^eneral  disregard  for  law  are 
appallingly  prevalent  in  nearly  all  parts  of  our 
Union.  That  our  criminal  law,  both  in  its  substance 
and  in  its  administration,  is  in  an  unsatisfactory 
condition  is  manifest.  In  striving  toward  its  needed 
reform,  we  cannot  wisely  ignore  the  advantages,  nor 
overlook  the  faults  of  other  legal  systems  prevailing 
among  peoples  of  a  civilization  as  highly  developed 
as  our  own. 


VI 


THE  CONSTITUTION  AND  OUR  NEW  PEOPLES; 

CITIZENS,  SUBJECTS,  NATIONALS  OR 

ALIENS 

A  MONG  the  still  unsolved  problems  incident  to 
■^  ^  oiir  annexation  of  the  Spanish  possessions, 
none  is  more  complex,  nor  presents  more  difficulties, 
both  practical  and  theoretical,  than  that  of  the  status 
of  the  Islanders,  both  Porto  Ricans  and  Filipinos.^ 
This  is  mainly  owing  to  the  fact  that  for  the  first 
time  in  our  history  we  have  acquired  real  de- 
pendencies. By  that  term  I  understand  territories 
inhabited  by  a  settled  population  differing  from 
us  in  race  and  civilization  to  such  an  extent  that 
assimilation  seems  impossible,  and  varying  among 
themselves  in  race,  development  and  culture  to  so 
great  a  degree  as  to  make  the  application  of  any 
uniform  political  system  difficult  if  not  impracticable. 
It  is  idle  to  attempt  to  find  any  adequate  or  guitl- 
ing  precedents  in  our  former  territorial  acquisi- 
tions. The  territories  transferred  from  France  and 
Mexico  were  not  sufficiently  populated  to  bring  us 
*  President's  Message,  1913. 
129 


CERTAINTY   AND   JUSTICE 

face  to  face  with  the  real  imperial  problem,  i.  e.,  the 
(Jominati(jn  over  men  (>(  one  order  or  kind  of  civil- 
ization by  men  of  a  different  and  higher  civilization. 

The  Nomad  tribes  of  America  presented  indeed 
a  problem,  but  only  a  passing  one.  North  America 
could  not  for  mere  sentimental  reasons  remain  as 
a  game  preserve  forever,  in  order  that  a  few  hun- 
dred thousand  red-skinned  hunters  might  indulge 
their  taste  for  the  chase  and  gain  subsistence  thereby 
as  they  had  done  in  the  past.  Necessity  and  the 
ruthless  progress  of  civilization  compelled  the  open- 
ing up  and  exploiting  of  the  American  continent  by 
the  overflowing  population  of  Old  Europe.  The 
Indian  problem  was  met  by  taking  the  land,  whether 
as  the  result  of  a  bargain  or  through  force  as  the 
white  man  needed  it,  and  the  relations  of  the  new- 
comer with  his  Nimrod  predecessor  were  gradually 
reduced  to  a  minor  question  through  the  agencies 
of  fire  water,  gunpowder  and  well-intended  but  un- 
wise policy.  The  logic  of  events  is  more  powerful 
than  that  of  Aristotle. 

The  populations  taken  over  from  France  and 
Mexico  were  insignificant  in  number.  They  were, 
moreover,  largely  of  Caucasian  race  and  civilization, 
and  a  growing  stream  of  immigration  soon  made 
the  new  lands  thoroughly  American,  and  thus  the 
question  there  quickly  became  academic.  More- 
over, the  two  civilizations  were  in  fact  equal  or 

130 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

nearly  so,  and  the  treaties,  both  of  Paris  (1800) 
and  of  Guadalupe  Hidalgo  (1848),  recognized  that 
fact  by  according  to  the  new  inhabitants  the  rights 
of  American  citizens.  Thus  the  problem  as  to  the 
legal  status  of  the  inhabitants  of  Louisiana  and  the 
territory  acquired  from  Mexico  was  solved  or  solved 
itself  ab  initio.  The  underlying  theory  upon  which 
both  treaties  were  based  was  expansion  rather  than 
imperialism. 

But  the  problem  of  to-day  cannot  be  solved  either 
by  extermination,  as  in  the  case  of  the  Indian,  nor 
by  assimilation,  as  in  the  case  of  the  few  French- 
men and  Spaniards.  Neither  the  methods  of  Miles 
Standish  nor  those  of  JefTerson  will  suffice  us  now. 
We  must  move  on  a  heretofore  untrodden  path  and 
seek  for  precedent  upon  which  to  base  intelligent 
legislation  and  administration,  not  in  our  own  his- 
tory, but  in  that  of  other  nations  who  have  preceded 
us  in  attempting  to  govern  non-assimilable  peoples. 

In  such  a  discussion  as  this  we  must  begin  by 
defining  the  necessary  terms,  otherwise  we  will  end 
as  do  most  academic  discussions  in  having  with 
much  clamor  demolished  a  man  of  straw.  The  ob- 
ject is  to  ascertain  exactly  what,  under  existing  law, 
is  the  constitutional  and  legal  status  of  the  Porto 
Rican  or  the  Filipino.  To  call  him  a  citizen  when 
we  are  in  hopeless  disagreement  as  to  the  meaning 
of  that  term  will  only  result  in  creating  added  con- 

131 


CERTAINTY    AND   JUSTICE 

fusion  and  in  arousing"  excitement  in  many  excellent 
but  possibly  not  very  analytical  minds. 

Citizenship,  broadly  speaking,  means  simply  mem- 
bership in  some  political  community.^  In  the  an- 
cient world  it  was  dependent  upon  descent  (citizen- 
ship jure  sanguinis).  The  descendant  of  a  citizen 
was  always  a  citizen  wherever  born,  and  the  de- 
scendant of  a  foreigner  always  a  foreigner  unless 
actually  naturalized  by  positive  legislation.  At 
Rome  the  rule  was  "once  a  peregrine  always  a  pere- 
grine." The  Jus  Sangninis  thus  inherited  from  the 
Roman  law  became  the  law  in  Europe,  but  for  ob- 
vious historic  reasons  never  took  root  in  England. 
In  that  country  the  rule  of  Jus  Soli,  or  citizenship 
because  of  birth  within  the  king's  allegiance  and 
dominion,  was  the  law  from  the  time  of  the  Norman 
conquest.    As  Professor  Pollock  says: 

"A  foreigner  at  the  head  of  an  army  recruited 
from  many  lands  conquered  England,  became  King 
of  the  English  and  endowed  his  followers  with  Eng- 
lish lands.  For  a  long  time  after  this  there  could 
be  little  law  against  aliens,  there  could  hardly  be 
such  a  thing  as  English  nationality." 

Thus  it  came  about  that  by  the  English  law : 

"As  regards  the  definition  of  the  two  great  classes 
of  men  which  have  to  be  distinguished  from  each 

*  Cyclopaedia  of  Political   Science  Article,  "Nationality,"  by 
Munroe  Smith. 

132 


CONSTITUTION   AND   OUR    NEW   PEOPLES 

other,  the  main  rule  is  very  simple.  The  place  of 
birth  is  all  important.  A  child  born  within  any  ter- 
ritory that  is  subject  to  the  King  of  England  is 
a  natural-born  subject  of  the  King  of  England." 

Coupled  with  this  rule,  which  has  continued  in 
England  to  be  the  law  down  to  the  present,  was  the 
doctrine  of  indelible  allegiance  and  consequent  denial 
of  the  right  of  expatriation.  Hence  the  rule  "once 
a  subject  always  a  subject" — but  this  doctrine  was 
modified  at  common  law  and  by  statute  so  that  the 
right  to  change  one's  allegiance  was  recognized  by 
allowing  British  subjects  to  expatriate  themselves 
and  aliens  to  become  subjects  by  letters  patent  from 
the  Crown  or  by  Act  of  Parliament,  i.  e.,  by  deniza- 
tion or  naturalization. 

Thus  the  sole  requisite  necessary  to  constitute  a 
British  subject  is  allegiance  or  subjection.  This 
subjection,  whether  due  to  birth  within  the  King's 
dominion  or  to  a  transfer  of  allegiance  from  a 
foreign  sovereignty  to  English  sovereignty,  is  the 
one  essential  requisite  for  determining  the  political 
status  of  the  individual.  Either  he  owes  allegiance 
to  the  sovereign  or  he  does  not.  In  the  one  case 
he  is  a  subject,  in  the  other  he  is  an  alien.  It  is 
quite  evident  that  these  two  categories  include  all 
men  and  leave  no  middle  class. 

Whatever  number  of  classifications  may  exist  as 
to  subjects  and  what  rights,  civil  or  political,  belong 

133 


CERTAINTY   AND   JUSTICE 

to  each  class  or  how  diverse  may  be  the  privileges 
accorded  by  law  or  treaty  to  aliens  of  one  nation 
or  another,  the  English  law  leaves  no  room  for 
quibble  as  to  who  are  aliens  and  who  are  subjects. 

In  the  United  States  the  law  has  not  been  so  clear. 

First,  because  by  reason  of  the  federal  form  of 
government  there  is  a  double  citizenship,  i.  e.,  that 
of  the  State  and  that  of  the  United  States,  and 

Second,  because  of  the  disuse  in  this  country  of 
the  word  "subject"  and  the  general  adoption  of  the 
term  "citizen." 

Since  the  time  of  the  separation  of  the  colonies 
from  Great  Britain,  all  through  what  has  been  ac- 
curately termed  "the  Confederation  Period"  of  our 
history,  there  was  doubt  as  to  whether  United  States 
citizenship  was  merely  derived  from  and  dependent 
upon  State  citizenship  or  whether  it  might  exist 
independently  of  membership  in  one  of  the  States. 
It  is  needless  to  examine  that  question  here,  the 
civil  war  solved  it  and  the  Fourteenth  Amendment 
crystallized  the  solution  into  constitutional  dogma. 

"All  persons  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof  are 
citizens  of  the  United  States  and  of  the  state  in 
which  they  reside." 

This  definition  is  substantially  that  of  the  common 
law.    The  phrase  "subject  to  the  jurisdiction"  is  the 

134 


CONSTITUTION   AND   OUR   NEW    PEOPLES 

equivalent  of  the  common  law  phrase  "born  under 
the  actual  obedience."  The  amendment  thus  made 
citizenship  and  subjection  identical,  and  hence  the 
doctrine  enunciated  in  the  Dred  Scott  case  that 
in  the  United  States  there  were  persons  who,  al- 
though subjects,  were  yet  not  citizens,  was  done 
away  with. 

Chief  Justice  Taney  in  that  cause  celchre  had  held 
that  the  free  negroes  were  not  citizens,  although 
they  were,  of  course,  not  aliens.  They  were  in  the 
theory  of  the  opinion  subjects  but  not  citizens. 
Thus,  for  the  first  time  in  our  history  we  had  a 
judicial  declaration  that  there  might  be  subjects 
who  were  not  citizens.  The  Fourteenth  Amendment 
settled  and  was  intended  to  settle  the  question  as 
to  the  negro.  How  does  it  affect  the  Porto  Rican 
and  the  Filipino  ? 

Before  determining  this  we  must  remember  that 
the  word  "citizenship"  is  used  in  two  senses : 

I,  It  denotes  the  holders  of  political  rights,  i.  e., 
those  upon  whom  the  law  has  conferred  the  suffrage. 
Possession  of  this  right  usually  depends  upon 
various  qualifications  of  sex,  education,  length  of 
residence,  etc.  Such  citizens  are  a  subdivision  or 
portion  of  the  inhabitants  "within  the  actual  obe- 
dience of  the  United  States"  or  subject  to  the  juris- 
diction thereof.  They  may  be  properly  denominated 
Burghers  or  Burgesses.    They  arc  active  citizens. 

135 


CERTAINTY   AND   JUSTICE 

2.  And  it  is  also  used  as  signifying  all  others 
born  or  naturalized  in  the  United  States.  This  in- 
cludes women,  minors,  incompetents,  etc.  Regard- 
less of  any  political  status  they  are  citizens  of  the 
United  States  and  entitled  to  all  the  "rights,  privi- 
leges and  immunities"  guaranteed  to  such  citizens. 
They  are  citizens  because  of  their  owing  allegiance 
to  the  United  States  and  hence  as  to  them  citizenship 
and  subjection  are  identical.  This  class  may  be 
termed  passive  citizens. 

If  we  used  the  term  subject,  all  citizens  active 
and  passive  would  be  included  in  that  term.  That 
term  has  now  fallen  into  general  disfavor  outside 
of  Great  Britain  because  of  its  usual  reference  to 
a  monarchical  form  of  government. 

A  very  convenient  term  not  open  to  any  objection 
on  this  score  is  the  term  "national."  National 
would  include  all  persons  owing  allegiance  to  the 
United  States  and  exclude  all  persons  owing  alle- 
giance to  any  other  power.  It  is  the  co-relative  of 
alien,  and  the  two  together  are  universally  inclusive. 
A  national  is  one  who  owes  allegiance  to  any  State, 
whatever  its  form  of  government.  All  citizens  must 
be  nationals,  but  all  nationals  may  not  be  citizens. 
Dred  Scott  was  not  an  alien;  he  was  a  national, 
but  he  was  not,  under  the  famous  decision,  a  citizen. 
The  Fourteenth  Amendment  settled  the  question  for 
the   African   race   and   made   citizen   and    subject 

136 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

synonymous  terms,  but  the  inquiry  arises,  have  new 
conditions  and  new  legislation  given  us  another  class 
of  Dred  Scotts,  i.  e.,  nationals  (or  subjects)  but 
not  citizens? 

Applying  the  foregoing  reasoning  to  the  case  of 
the  Porto  Rican  or  Filipino,  the  first  inquiry  is  not 
whether  he  is  an  alien  or  a  citizen,  because  these 
terms  may  not  be  necessarily  exclusive.  But  is  he 
an  alien  or  a  national? 

If  he  is  an  alien,  the  inquiry  need  go  no  further; 
the  legal  position  of  an  alien  is  clear  enough.  If, 
on  the  other  hand,  he  is  a  national,  as  would  appear 
from  the  decision  of  the  Supreme  Court  in  the 
case  hereafter  referred  to,  the  problem  is  only  partly 
solved.  He  is  not  under  the  disabilities  of  alienage, 
and  the  laws  applying  to  aliens  do  not  affect  him. 
But  do  the  positive  rights  of  citizenship  granted  by 
the  Constitution  and  United  States  laws  apply  to 
him?  That,  I  think,  is  the  only  really  difficult  ques- 
tion. Have  we  to-day  a  class  of  nationals  who 
are  not  citizens,  who  though  not  aliens  and  entitled 
to  the  protection  of  the  United  States,  cannot,  for 
instance,  institute  suit  in  a  federal  court?  This 
question  still  remains  unsettled  fourteen  years  after 
the  Treaty  of  Paris,  because  of  the  continued  inac- 
tion of  Congress. 

The  Treaty  with  Spain  of  April  1 1,  1898,  provides 
that: 

137 


CERTAINTY   AND   JUSTICE 

"Article  II. 
"Spain  cedes  to  the  United  States  the  Island  of 
Porto  Rico  and  other  islands  now  under  Spanish 
sovereignty    in    the    West    Indies,    and    the    Island 
of  Guam  in  the  Marianas  or  Ladrones." 

"Article  III. 

"Spain  cedes  to  the  United  States  the  archipelago 
known  as  the  Philippine  Islands,  and  comprehending 
the  islands  lying  within  the  following  line  •.*♦*" 

"Article  IX. 

"Spanish  subjects,  natives  of  the  Peninsula,  re- 
siding in  the  territory  over  which  Spain  by  the  pres- 
ent treaty  relinquishes  or  cedes  her  sovereignty, 
may  remain  in  such  territory  or  may  remove  there- 
from, retaining  in  either  of  them  all  their  rights 
of  property,  including  the  right  to  sell  or  dispose  of 
such  property  or  of  its  proceeds ;  and  they  shall  also 
have  the  right  to  carry  on  their  industry,  commerce 
and  professions,  being  subject  in  respect  thereof  to 
such  laws  as  are  applicable  to  other  foreigners.  In 
case  they  remain  in  the  territory  they  may  preserve 
their  allegiance  to  the  Crown  of  Spain  by  making, 
before  a  Court  of  Record,  within  a  year  from  the 
date  of  the  exchange  of  ratifications  of  this  treaty, 
a  declaration  of  their  decision  to  preserve  such  al- 
legiance; in  default  of  which  declaration  they  shall 
be  held  to  have  renounced  it  and  to  have  adopted 
the  nationality  of  the  territory  in  which  they  may 
reside. 

"The  civil  rights  and  political  status  of  the  native 
138 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

inhabitants  of  the  territories  hereby  eeded  to  the 
United  States  shall  be  determined  by  the  Congress." 

The  Treaty  thus  definitely  accomplishes  one  legal 
result;  it  transfers  the  sovereignty  of  Spain  over  the 
islands  and  their  peoples  to  the  United  States  and 
with  such  sovereignty  necessarily  the  allegiance  of 
the  people.  The  Porto  Ricans  thereby  ceased  to 
owe  allegiance  to  Spain  and  now  owe  it  to  the 
United  States.  Whatever  consequences  follow  from 
this  fact  cannot  be  avoided.  But  their  allegiance 
or  subjection  having  been  transferred,  they  neces- 
sarily have  become  United  States  nationals  or  sub- 
jects. No  other  conditions  arc  necessary  to  consti- 
tute American  nationality.  Even  the  free  negro  be- 
fore the  Fourteenth  Amendment  was  a  national,  he 
was  not  an  alien.  The  islanders  cannot  be  aliens 
unless  they  owe  allegiance  to  some  other  govern- 
ment, and  even  the  most  advanced  anti-Imperialist 
will  not  contend  that  they  are  still  subject  to  Spain, 
however  much  he  may  deprecate  the  making  of  the 
Treaty  of  Paris. 

The  man  without  a  country  is  not  known  to  law. 
Having  ceased  to  be  Spanish  subjects  or  nationals, 
they  are  no  longer  aliens  and  have  necessarily  be- 
come United  States  nationals. 

This  would  seem  to  be  as  demonstrably  obvious 
and  certain  as  anything  can  be  in  the  domain  of 
law,  public  or  private,  and  has  the  sanction  of  the 

139 


CERTAINTY    AND    JUSTICE 

Supreme  Court.  A  native  inhabitant  of  Porto  Rico 
was  detained  at  the  port  of  New  York  in  1902  and 
ordered  sent  back  to  Porto  Rico  as  an  indigent  ahen 
under  the  statute  giving  this  power  to  the  com- 
missioner, under  certain  circumstances,  in  the  case 
of  alien  immigrants. 

This  immigrant,  Isabella  Gonzales,  sued  out  a 
writ  of  habeas  corpus  and  was  brought  before  the 
United  States  Circuit  Court  in  the  Second  District. 
It  is  not  apparent  why  the  court  did  not  sustain 
the  writ  upon  the  ground  that  the  petitioner,  even 
if  an  alien,  was  not  an  immigrant,  the  immigration 
laws  not  being  intended  to  apply  to  persons  travers- 
ing domestic  territory  of  the  United  States.  How- 
ever, the  opinion  makes  no  mention  of  this  point. 
The  court  dismissed  the  writ  and  remanded  the 
petitioner  to  be  returned  to  Porto  Rico,  upon  the 
ground  that  as  a  native  Porto  Rican  she  was  an 
alien  and  amenable  to  the  immigration  law.^ 

The  reasoning  by  which  the  result  is  reached  is 
contained  in  the  four  following  propositions : 

I.  The  inhabitants  of  Porto  Rico  were  aliens 
prior  to  the  ratification  of  the  Treaty  of  Paris, 
April  II,  1899. 

II.  As  such  alien  inhabitants  they  could  only  be- 
come citizens  of  the  United  States  by  naturalization. 

'118  Federal  Reporter,  941. 
140 


CONSTITUTION   AND   OUR    NEW   PEOPLES 

III.  The  petitioner  having  been  born  before  the 
treaty,  must  show  that  she  has  been  naturahzed. 
She  could  invoke  no  law  save  the  treaty  of  annexa- 
tion. But  conceding  the  possibility  of  collective 
naturalization  by  treaty,  the  Treaty  of  Paris  ex- 
pressly reserved  the  "civil  rights  and  political  status 
of  the  native  inhabitants"  to  the  future  action  of 
Congress. 

IV.  Congress  not  having  legislated  as  to  the 
naturalization  of  Porto  Ricans,  they  have  not  be- 
come citizens;  therefore,  their  original  status  re- 
mains unaffected  and  they  are  aliens.  Or  to  use 
the  learned  judge's  exact  language : 

"Being  foreign  born  and  not  naturalized,  she  re- 
mained an  alien  and  subject  to  the  provisions  of  law 
regulating  the  admission  of  aliens  who  come  to  the 
United  States." 

Thus,  according  to  this  decision,  there  was  no 
middle  ground  between  citizens  and  aliens,  and  any 
one  who  is  not  an  American  citizen  is  necessarily 
an  alien. 

"An  American  alien"  certainly  would  seem,  at 
least  to  one  unaccustomed  to  the  startling  paradoxes 
of  the  law,  a  strange  and  monstrous  category.  Is 
it  a  logical  result  ?  I  think  not,  and  for  the  follow- 
ing reasons : 

141 


CERTAINTY   AND   JUSTICE 

I.  The  treaty  actually  accomplished  a  cession  of 
the  territory  and  a  transfer  of  allegiance.  It  made 
the  territory  domestic  territory ;  the  reservation  as 
to  political  status  and  civil  right  cannot  change  that 
cardinal  fact.^ 

II.  Aliens  are  merely  foreigners  residing  or  so- 
journing in  the  United  States.  An  alien  is  neces- 
sarily a  foreigner  and  must  owe  allegiance  to  an- 
other country. 

"An  alien  is  a  foreigner,  a  person  resident  in  one 
country  but  owing  allegiance  to  another."  Ency. 
Law,  Alien. 

When  the  Porto  Rican  ceased  to  owe  allegiance 
to  Spain,  it  is  difificult  to  see  how  he  could  still  re- 
main a  foreigner.  He  was  an  inhabitant  of  domestic 
territory.  Certainly  he  occupied  a  different  relation 
to  the  United  States  from  that  which  he  had  pre- 
viously sustained.  He  became  subject  to  its  laws 
and  its  exclusive  sovereignty.  These  facts  must 
have  some  significance.  He  was  in  fact  a  United 
States  national  by  virtue  of  the  mere  cession  of  the 
island  to  a  new  sovereignty  and  the  transfer  of  his 
allegiance. 

The  treaty  could  not  take  away  his  Spanish  alle- 
giance, transfer  it  to  the  United  States  and  leave 
him  unaffected.     The  status  of  alienage  or  non- 

^  De  Lima  v.  Bidwell  (igoi),  182  U.  S.,  i. 
142 


CONSTITUTION   AND   OUR    NEW   PEOPLES 

alienage  depends  upon  facts.  The  facts  accom- 
plished by  the  treaty  were  none  the  less  facts  because 
the  power  was  reserved  to  Congress  to  pass  upon 
the  status  of  the  Islanders.  Congress  cannot  make 
red  men  white  men,  even  by  joint  resolution,  nor 
can  they  make  Porto  Ricans  aliens  by  calling  them 
such.  In  order  to  become  aliens  they  would  have 
to  pass  under  another  domination.  They  might  be 
transferred  to  Spain  or  ceded  to  some  other  power 
or  given  independence,  but  until  then  they  are  and 
must  remain  United  States  nationals.  It  would 
seem  that  the  result  there  reached  was  predi- 
cated upon  the  assumption  that  citizenship  and 
alienage  are  exclusive  categories,  and  not  to  fall 
within  the  one  necessarily  implies  belonging  to 
the  other. 

This  case  was  appealed  to  the  Supreme  Court  of 
the  United  States  {Gonzales  v.  Williams,  192  U.  S., 
p.  i).  The  court  did  not  deem  it  necessary  to  pass 
squarely  upon  the  question  as  to  whether  or  not 
Porto  Ricans  were  citizens  of  the  United  States, 
but  they  decided  that  the  Immigration  Act  did  not 
apply  to  Isabella  Gonzales  for  the  reason  that  she 
was  not  an  alien  immigrant,  and  that  consequently 
the  Commissioner  of  Immigration  had  no  jurisdic- 
tion over  or  no  power  to  detain  her. 

The  Supreme  Court,  speaking  through  Mr.  Chief 
Justice  Fuller,  said : 

143 


CERTAINTY   AND   JUSTICE 

"Counsel  for  the  government  contends  that  the 
test  of  Gonzales'  rights  was  citizenship  of  the  United 
States  and  not  alienage.  We  do  not  think  so,  and, 
on  the  contrary,  are  of  opinion  that  if  Gonzales 
were  not  an  alien  within  the  act  of  1891,  the  order 
below  was  erroneous. 

"Conceding  to  counsel  that  the  general  terms 
'alien',  'citizen',  'subject',  are  not  absolutely  inclus- 
ive, or  completely  comprehensive,  and  that,  there- 
fore, neither  of  the  numerous  definitions  of  the  term 
'alien'  is  necessarily  controlling,  we,  nevertheless, 
cannot  concede,  in  view  of  the  language  of  the 
treaty  and  of  the  act  of  April  12,  1900,  that  the 
word  'alien',  as  used  in  the  act  of  1891,  embraces 
the  citizens  of  Porto  Rico."     *     *     * 

"We  think  it  clear  that  the  act  relates  to  for- 
eigners as  respects  this  country,  to  persons  owing 
allegiance  to  a  foreign  government,  and  citizens  or 
subjects  thereof;  and  that  citizens  of  Porto  Rico, 
whose  permanent  allegiance  is  due  to  the  United 
States;  who  live  in  the  peace  of  the  dominion  of 
the  United  States;  the  organic  law  of  whose  dom- 
icile was  enacted  by  the  United  States,  and  is  en- 
forced through  officials  sworn  to  support  the  Con- 
stitution of  the  United  States,  are  not  'aliens',  and 
upon  their  arrival  by  water  at  the  ports  of  our 
mainland  are  not  'alien  immigrants'  within  the 
intent  and  meaning  of  the  act  of  1891." 

The  decision  of  the  Supreme  Court  thus  upheld 
the  thesis  herein  propounded.  The  inhabitants  of 
our  new  territory  were  Americans,  nationals,  liege- 

144 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

men  or  subjects  as  one  may  prefer  to  call  them ;  they 
are  certainly  not  foreigners,  though  they  are  not 
necessarily  citizens. 

As  we  have  seen,  the  fact  of  alienage  necessarily 
involves  the  idea  of  a  power  to  whom  allegiance  is 
due.  But  no  man  or  woman  can  owe  the  debt  of 
allegiance  without  an  equivalent.  Who  feels  the 
advantage  should  also  bear  the  burden,  says  the  old 
adage;  but  it  is  equally  true  that  he  who  is  called 
to  bear  the  burden  should  derive  some  benefit  or 
compensation  therefrom.  What  "commodum"  or 
advantage  did  the  Senorita  Gonzales  reap  from  her 
situation?  To  whom  does  she  owe  allegiance,  out- 
side of  the  United  States?  What  nation  in  the  wide 
world  will  raise,  nay,  will  be  permitted  by  us  to 
raise  a  finger  or  even  a  voice  in  behalf  of  this  wom- 
an if  she  is  injured  in  her  property  and  restrained  in 
her  liberty?  What  flag  may  she  look  to  in  her  neces- 
sity, outside  the  flag  of  the  United  States?  Against 
what  government  or  nation  may  she  commit 
treason?  And  if  she  should  commit  such  acts,  in 
Porto  Rico,  against  the  sovereignty  of  the  United 
States  as  constitute  that  crime,  would  she  go  un- 
whipped  of  justice  because  she  had  not  been  na- 
turalized a  citizen  of  the  United  States? 

If  it  should  be  claimed  that  a  treaty  alone  and 
without  an  act  of  Congress  cannot  raise  her  out  of 
her  condition  as  a  derelict  alien,  it  is  plain  that  such 

145 


CERTAINTY   AND   JUSTICE 

a  claim  cannot  be  sustained.  The  treaty  became 
from  the  date  of  its  ratification  the  supreme  law 
of  the  land,  and  the  language  here  is  plain  and 
unequivocal :  "Spain  cedes  to  the  United  States  the 
island  of  Porto  Rico  and  other  islands  now  under 
Spanish  sovereignty  in  the  West  Indies."  This 
cession,  accepted  as  it  was  by  the  United  States, 
necessarily  transferred  the  sovereignty  to  this 
government.  That  sovereignty  plainly  is,  as  it  must 
be,  exclusive  of  any  foreign  power.  Either  Miss 
Gonzales  is  an  undefined  waif  on  the  sea  of  political 
uncertainty,  or  she  belongs  to  the  United  States, 
and  may  look  to  it  for  protection  against  injury, 
for  redress  where  wrong  has  been  done  and  for 
assistance  where  it  may  be  needed  against  any 
government  of  the  earth,  Spain  included.  The  new 
master,  viz.,  the  United  States,  takes  her  allegiance 
with  a  burden,  and  having  deprived  her  of  all  claim 
on  the  old  master,  has  taken  his  place. 

Other  clauses  of  the  treaty  make  these  considera- 
tions more  plausible  than  they  might  be  if  unaided 
by  the  terms  of  that  instrument.  To  some  extent, 
at  least,  the  contracting  parties  had  in  contemplation 
the  possible  rights  of  the  Spanish  citizens  who  were 
transferred  to  a  new  sovereignty.  There  is  a  saving 
clause  allowing  an  option  to  Spanish  subjects, 
natives  of  the  Peninsula,  residing  in  the  territory 
over  which  Spain  by  the  treaty  relinquished  or  ceded 

146 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

her  sovereignty.  Such  residents  might  preserve 
their  allegiance  to  the  Crown  of  Spain  by  making, 
before  a  court  of  record,  a  declaration  of  their  in- 
tention to  preserve  such  allegiance;  otherwise  they 
would  be  held  to  have  renounced  it  and  to  have 
adopted  "the  nationality  of  the  territory"  in  which 
they  might  reside. 

Assuming  then  the  Islanders  to  be  nationals,  as 
we  certainly  must,  since  the  decision  of  the  Su- 
preme Court  above  referred  to,  still  the  question 
remains:    Are  they  citizens? 

In  endeavoring  to  arrive  at  a  rational  solution 
of  this  question,  it  is  necessary  to  remember  that 
the  inhabitants  of  the  Island  are  of  two  classes : 
First,  those  born  prior  to  the  taking  effect  of  the 
Treaty  of  Cession,  that  is  to  say,  April  ii,  1S99, 
whom  we  may  properly  call  the  ante  nati,  and,  sec- 
ond, those  born  subsequent  to  the  ratification  of  the 
Treaty,  whom  we  may  designate  as  the  post  nati. 
The  possible  distinction  between  these  two  classes 
is  due  to  the  wording  of  the  Fourteenth  Amend- 
ment, that  "all  persons  born  or  naturalized  uilliin 
the  United  States  are  citizens  thereof."  Assuming 
the  words  United  States  in  the  Amendment  to  com- 
prise the  possessions  wrested  from  Spain  ami  ceded 
by  the  Treaty,  the  post  nati  would  thus  be  full  citi- 
zens of  the  United  States. 

In   view,   however,  of  the  decision   of   the   Su- 

147 


CERTAINTY   AND   JUSTICE 

preme  Court  in  Douties  v.  Bidwell, '  that  the  words 
"throughout  the  United  States,"  in  the  revenue 
clause  of  the  Constitution  did  not  comprise  the  new 
possessions,  it  is  quite  possible  that  a  relevant  and 
proper  case  being  presented  to  that  tribunal  the  de- 
cision (following  the  reasoning  of  Doivnes  v.  Bid- 
well)  would  be  to  the  effect  that  the  language  of 
the  Fourteenth  Amendment  contemplated  only  those 
portions  of  the  United  States  covered  by  State  gov- 
ernments or  technically  "incorporated"  into  the 
United  States.  It  is  to  be  hoped  that  such  a  case 
will  in  the  near  future  be  presented  to  the  court. 

As  a  discussion  of  the  possible  distinction  be- 
tween ante  nati  and  post  nati  would  involve  a  dis- 
cussion and  analysis  of  the  Downes  case,  we  will 
not  take  it  up  here.  The  question  will  now  be 
considered  simply  from  the  standpoint  of  the  in- 
habitants in  existence  at  the  time  of  the  annexa- 
tion, and  we  will  leave  the  question  as  to  whether 
their  descendants  would,  in  virtue  of  the  Four- 
teenth Amendment,  have  any  greater  rights,  than 
themselves,  to  the  future  determination  of  the  Su- 
preme Court  of  the  United  States. 

It  must  be  admitted  that  the  Treaty  has  done 
whatever  it  could  by  its  language  to  prevent  the  in- 
ference that  there  was  any  collective  naturaliza- 
tion of  the  people  of  the  Islands.     While  a  treaty 

VCigoi)  182  U.  S.,  244 
148 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

may  indeed  collectively  naturalize  a  whole  people,' 
nevertheless  it  is  fair  to  assume  that  the  Treaty 
must  intend  such  naturalization  to  take  place.  In 
this  case,  "the  political  status  and  civil  rights" 
having  been  reserved  for  the  future  action  of  Con- 
gress, it  is  fair  to  argue  that  no  naturalization  has 
taken  place;  it  has,  however,  already  been  shown 
that  the  Porto  Ricans  were  nationalized,  that  is  to 
say,  their  allegiance  transferred,  but  as  nationaliza- 
tion does  not  necessarily  mean  naturalization,  and 
as  naturalization  has  not  been  brought  about,  either 
by  the  Treaty  or  by  subsequent  act  of  Congress,  it 
seems  that  they  occupy  an  intermediate  status  be- 
tween citizens  of  the  United  States  and  aliens.  In 
other  w^ords,  they  are  entitled  to  the  protection  of 
the  government,  and  as  far  as  foreign  nations  are 
concerned  are  Americans,  yet  they  may  not  be 
vested  with  all  the  rights  of  citizens  of  the  United 
States. 

What  these  rights  of  citizens  of  the  United 
States  are,  it  is  very  difficult  to  determine.  The 
trend  of  doctrine  in  the  Supreme  Court  of  the 
United  States  seems  to  be  that  most  of  the  rights  of 
citizenship  are  under  the  protection  of  the  States 
themselves,  that  civil  liberty  was  not  nationalized 
by  the  Fourteenth  Amendment,  and  that  only  such 
rights,  as  are  expressly  secured  by  the  Constitution 

'Boyd  V.  Thayer  (1892),  143  U-  S.,  I3S- 
149 


CERTAINTY    AND   JUSTICE 

of  the  United  States,  belong  to  the  citizen;  that  for 
the  vindication  of  all  others  he  must  look  to  the 
State.  Thus  the  citizen  of  the  United  States  who 
is  not  also  a  State  citizen,  but  an  inhabitant  of  a 
territory,  holds  his  rights  subject  to  the  discretion 
of  Congress,  except  in  as  far  as  that  body  may  be 
limited  by  the  mandates  of  the  Constitution. 

Notwithstanding  the  statement  of  the  Supreme 
Court  that  the  enumeration  "would  be  more  tedious 
than  difficult,"^  we  have  already  seen  that  the  rights 
of  citizens  of  the  United  States  are  almost  impos- 
sible of  definition.  The  general  right  to  life,  liberty 
and  property,  provided  for  by  the  Constitution  and 
more  specifically  by  the  ten  amendments  in  favor 
of  civil  liberty,  apply  to  all  men  alike,  whether  citi- 
zens or  aliens. 

The  only  positive  right  conferred  by  the  Consti- 
tution upon  a  citizen  as  such  seems  to  be  the  right 
to  sue  in  a  federal  court.  This  was  the  right  which 
it  was  held  that  Dred  Scott  did  not  possess  because 
not  a  citizen.  Thus,  as  far  as  the  government  of 
the  United  States  is  concerned,  the  inhabitants  of 
the  Islands,  assuming  them  to  be  nationals,  but  not 
citizens,  could  hardly  be  said  to  have  any  lesser 
civil  rights  in  fact  than  full  citizens  of  the  United 
States.  While  they  could  not  sue  in  federal  courts, 
this  would  scarcely  be  an  additional  burden  to  those 
176  U.  S.,  589. 
150 


CONSTITUTION   AND   OUR   NEW    PEOPLES 

that  remained  at  home,  because  this  right  only  be- 
longs to  a  citizen  of  the  United  States  residing  in 
a  State.  It  is  not  possessed  by  the  residents  of 
the  District  of  Columbia,  nor  of  the  Territories 
of  the  United  States. 

As  far  as  the  action  of  the  States  themselves  is 
concerned,  the  matter  becomes  somewhat  more  com- 
plicated. One  of  the  most  natural  illustrations  is 
as  to  the  holding  of  real  estate  in  the  various 
States.  In  many  of  our  States  there  exists  as  an  ob- 
solete remnant  of  the  old  and  barbarous  Droit- 
d'aiibaine,  the  law  by  which  an  alien  holder  of  real 
estate  is  subject  to  an  action  of  forfeiture.  This 
rule,  according  to  the  learned  Mr.  Pollock,  arose 
historically  from  the  habit  of  the  English  Crown 
of  confiscating  the  estates  of  Norman  nobles,  situ- 
ated in  England,  who  swore  allegiance  to  the  Crown 
of  France  after  the  separation  of  Normandy  from 
England.  This  practice  ripened  with  time  into 
a  general  rule  of  law.  Its  illustrious  origin  has 
long  been  forgotten,  and  it  now  remains  as  a  rem- 
nant of  ancient,  time-honored  law. 

It  is  to  be  noted,  however,  that  the  right  to  hold 
real  estate  free  from  any  interference  f)n  the  part 
of  the  government,  is  not  a  right  inherent  in  the 
citizen  as  such,  but  that  the  prohibition  is  simply  a 
disability  of  alienage.  Thus,  if  our  theory  be  cor- 
rect, a  Porto  Rican  might  well  hold  real  estate  in 

151 


CERTAINTY   AND   JUSTICE 

the  City  of  New  York,  free  fn^m  molestation  by 
the  Attorney  General,  because,  although  not  a  full 
citizen,  he  certainly  is  not  an  alien,  and,  therefore, 
not  under  the  consequent  disabilities. 

It  is  thus  apparent  that  there  are  very  few,  if 
any,  civil  rights  which  he  does  not  have  in  com- 
mon with  citizens. 

As  to  political  rights,  however,  the  situation  is 
entirely  different.  Usually,  though  not  always,  the 
right  to  vote  in  the  various  States  is  conditioned 
upon  citizenship  of  the  United  States,  and  a  Porto 
Rican  national,  in  the  absence  of  State  legislation, 
especially  made  to  fit  his  case,  would  not  be  allowed 
to  vote  in  the  States.  As  some  of  the  States,  how- 
ever, allow  aliens  to  vote,  after  a  declaration  of  in- 
tention to  become  citizens,  this  disability  could  and 
would  easily,  if  the  State  desired  it,  be  removed  for 
the  benefit  of  those  of  our  new  inhabitants  who 
desired  to  settle  in  the  States. 

It  is  manifest  that  the  distinction  here  made 
between  aliens  and  nationals  is  very  important 
for  the  Islanders  themselves,  and  by  reason  of  it 
they  are  not  under  the  disability  of  alienage  and  en- 
joy nearly,  if  not  quite,  all  the  ordinary  civil  rights 
pertaining  to  the  citizen. 

On  the  other  hand,  the  distinction  between  the 
two  classes  of  nationals,  namely,  full  citizens  of  the 
United  States,  that  is  to  say,  those  born  or  natur- 

152 


CONSTITUTION   AND   OUR    NEW   PEOPLES 

alized  within  the  United  States,  and  those  not  born 
or  naturaHzed  therein,  but  owing  allegiance  thereto, 
becomes  also  important.  If  these  latter  are  not 
citizens  of  the  United  States,  all  the  political  privi- 
leges accorded  by  law  to  persons  as  such  citizens 
would  not  apply  to  them,  and  thus  in  the  absence 
of  special  legislation  they  would  have  no  political 
rights  in  the  various  States  until  the  States  chose  to 
change  their  legalization.  In  so  far  as  the  Islanders 
remaining  at  home  are  concerned,  they  would,  of 
course,  even  in  the  absence  of  any  treaty  clause,  be 
subject  to  the  complete  control  of  Congress  in  the 
matter  of  political  rights,  the  Constitution  placing 
no  limitation  upon  Congress  acting  in  and  for  the 
Territories  in  that  regard.  In  this  respect  they 
would  be  under  no  greater  political  disability  than 
inhabitants  of  the  District  of  Columbia. 

It  may  be  asked  whether  they  have  the  right  to 
trial  by  jury  and  to  the  other  civil  rights  guar- 
anteed by  the  Constitution.  It  is  sufiicient  to  say 
that  these  rights  are  in  no  wise  dependent,  either 
upon  citizenship  or  alienage.  These  are  accorded 
to  all  persons.  ^ 

It  is  quite  possible,  however,  that  the  Supreme 

Court  might  decide  that  some  of  these  limitations 

were  only  operative   upon   Congress   when    acting 

within  the  United  States  proper,  and  that,   there- 

'  Yick  Wo  V.  Hopkins  (1885),  118  U.  S.,  370. 

153 


CERTAINTY    AND   JUSTICE 

fore,  they  did  not  apply  to  the  new  inhabitants. 
It  is  thus  seen  that  this  question  is  entirely 
beside  that  of  citizenship  or  alienage  and  has 
only  to  do  with  the  ai)plicability  of  certain  por- 
tions of  the  Constitution  when  limiting  the 
power  of  Congress  legislating  for  the  new  ter- 
ritory.^ 

In  our  own  history  we  have  but  one  precedent, 
and  that,  one  which  Americans  can  scarcely  regard 
with  pride,  namely,  the  condition  or  status  of  the 
free  negro  before  the  Fourteenth  Amendment,  as 
determined  by  the  Dred  Scott  case.  The  condition 
of  the  tribal  Indian  who  had  left  his  tribe  furnishes 
some  analogy.^  Other  nations,  however,  have  for 
years  past  had  the  same  problem  before  them  as 
we  have  now,  and  have  solved  it  in  much  the  same 
way. 

One  of  the  most  interesting  of  recent  territorial 
acquisitions,  by  reason  of  the  mixed  character  of 
the  population,  is  that  of  Algeria  by  France.  The 
French  Chambers  not  having  legislated  as  to  the 
status  of  the  inhabitants  of  Algeria,  the  question 
as  to  the  status  of  the  natives  of  Algeria  came 
before  the  Court  of  Appeal  of  Paris  in  1839.  The 
question  was  very  similar  to  that  involved  in 
the  Gonzales  case,  as  in  neither  case  had  the  execu- 

'  (1901)  Dozvttes  V.  Bidwell,  182  U.  S.,  244. 
'Elk  V.  Wilkins,  112  U.  S.,  94. 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

live  or  the  legislative  authorities  conferred  any 
rights  of  citizenship  upon  the  annexed  people,  but 
had  simply  transferred  their  allegiance  from  their 
former  sovereign  to  the  new  one.  The  court  there 
decided  that  although  there  was  no  legislation 
fixing  their  status,  and  it  had  not  been  established 
by  any  treaty,  nevertheless  the  Ordinance  of  the 
loth  of  August,  1834,  had  submitted  the  Algerians 
to  French  law  and  sovereignty,  and  from  that  time 
it  was  no  longer  possible  to  assimilate  them  to 
strangers.  On  the  14th  of  July,  1865,  only,  were 
they  actually  declared  French  by  a  senatus  con- 
sultiim,  but  although  decided  to  be  French  they  were 
held  to  be  still  governed  by  the  Mussulman  law,  to 
which  they  had  been  subject  at  the  time  of  their 
annexation.  The  French  Government  thus  recog- 
nized a  situation  which  we,  until  very  recent  years, 
refused  to  recognize  in  the  case  of  the  Indians, 
namely,  that  such  tribes  or  peoples  living  under  a 
different  law  and  civilization,  possessing  a  complete 
organization  of  their  own,  should  be  treated  as  na- 
tionals of  the  sovereignty  to  which  they  were  really 
subject,  but  should  in  their  private  relations  be  gov- 
erned by  their  tribal  law.  While  we  did  not  in- 
terfere with  the  tribal  law  of  the  Indians,  we  yet 
affected  to  assimilate  them  rather  to  a  foreign  peo- 
ple than  to  nationals,  and  made  treaties  with  them 
in  preference  to  legislating  for  them  directly.    Our 

155 


CERTAINTY    AND   JUSTICE 

legal  theory  was  thus  at  variance  with  the  actual 
facts. 

To  return  to  the  Algerians.  By  administrative 
decrees  of  the  loth  of  September,  1886,  and  of  the 
17th  of  April,  1889,  the  Mussulman  law  ceased  to 
be  the  common  law  for  the  inhabitants  of  Algeria, 
and  thereafter  the  French  law  was  to  apply  to  them. 
Certain  exceptions,  however,  were  notedly  retained 
in  what  concerns  the  status  of  persons,  successions, 
and  real  estate  held  in  community. 

The  Algerian  subject  is  accorded  no  political 
rights  whatever  and  can  acquire  none  except  by  be- 
coming a  French  citizen.  This  the  Algerian  may 
become  by  direct  legislation,  as,  for  example,  the 
Decret  Cremieux,  October,  1870,  which  conferred 
French  citizenship  on  the  Israelite  inhabitants  of 
Algeria,  or  by  naturalization,  but  this  naturalization 
is  somewhat  different  from  the  naturalization  of  an 
alien.  The  Algerian  has  only  to  make  a  simple 
declaration  before  the  Mayor,  and  after  the  inquiry 
by  the  Mayor  and  the  recommendation  of  the  Coun- 
cil of  State  the  naturalization  is  granted  as  matter 
of  right. 

As  instancing  the  difficulties  in  the  treatment  of 
the  Algerian  population,  and  which  we  should  en- 
deavor to  avoid  in  the  treatment  of  our  new 
population,  especially  that  of  the  Philippines,  may 
be  cited  the  following  example : 

156 


CONSTITUTION   AND   OUR    NEW    PEOPLES 

The  Arab  tribes  in  Algeria  possessed  lands  in 
common,  which  belonged  to  the  tribes  as  such,  and 
in  which  the  individual  had  no  interest  save  by 
reason  of  membership  in  such  tribe.  Prior  to  the 
decrees  of  1886  and  1889,  certain  shrewd,  but  not 
over-scrupulous,  speculators  purchased  from  a  mem- 
ber of  the  tribe  his  interest  in  the  tribal  property. 
The  purchaser,  a  French  citizen,  then  invoked  the 
principle  of  French  law  that  no  man  shall  be  forced 
to  remain  a  tenant  in  common  and  may  always 
have  the  property  divided  among  the  co-owners  by 
a  judicial  partition.  Process  was  issued  and 
the  stolid  Arab  members  of  the  tribe  were  duly 
served  by  the  Huissier  with  the  various  legal  papers 
incident  to  such  a  litigation.  It  is  easy  to  imagine 
that  the  effect  of  service  of  process  was  not  under- 
stood by  the  Arab,  and  that  in  all  probability  the 
ornamental  blue  paper,  on  which  process  is  usually 
inscribed,  was  used  for  the  purpose  of  igniting  his 
pipe.  In  any  event,  after  the  prescribed  time,  judg- 
ment was  taken  by  default,  and  the  tribal  prop- 
erty put  up  at  auction,  sold  and  the  bulk  of  it 
applied  to  the  payment  of  the  legal  expenses  inci- 
dent to  the  suit  against  the  tribe.  Of  course  this 
resulted  in  mere  eviction  from  the  communal  land, 
and  such  abuses  became  so  great  and  the  injustice  so 
manifest  as  to  lead  to  serious  revolts,  and  finally  a 
special  act  of  the  28th  of  April,  1887.  provided  some 

157 


CER'IAIN'IV    AND   JUS'IICK 

remedies  fur  tlicse  evils,  but  has  not  succeeded  in 
eradicating  them.  The  remedy  sought  by  the  spe- 
cial act  was  to  apply  the  Mussulman  law  to  this 
communal  property  regardless  of  whether  the  litiga- 
tion was  between  natives  or  natives  and  French 
citizens. 

We  may  well  differentiate  between  the  Porto 
Ricans  and  the  very  heterogeneous  peoples  of  the 
Philippines.  That  Congress  should  accord  full 
citizenship  to  the  people  of  Porto  Rico  is  but  giving 
them  their  due.  It  seems  probable  that  this  will 
shortly  be  done  (1913).  The  Philippine  problem 
is  wholly  different  and  much  more  difficult  and 
will  not  be  discussed  here. 


158 


VII 


THE  LAW  AND  OUR  INDUSTRIAL  DEVELOP- 
MENT. THE  RULE  OF  REASON 

"The  resolutions  of  the  books  upon  these  con- 
tracts seeming  to  disagree,  I  will  endeavor  to  state 
the  law  upon  this  head,  and  reconcile  the  jarring 
opinions." 

'"T^HESE  are  not  the  words  of  the  Chief  Jus- 
'■'  tice  of  the  United  States  in  the  Standard  Oil 
case,  however  appropriately  I  hey  might  have  been 
there  used,  but  are  taken  from  the  opinion  of  Chief 
Judge  Parker  (later  Lord  Macclesfield)  delivering 
the  opinion  of  the  Court  of  King's  Bench  in  a  case 
involving  a  contract  alleged  to  be  "in  restraint  of 
trade"  in  the  year  171 1  (Mitcliel  r.  Reynolds,  1,  V. 
Williams).  It  thus  would  appear  that  for  some  two 
centuries  the  subject  has  not  been  free  from  diffi- 
culties and  that  jarring  notes  at  Bench  and  Bar 
are  merely  the  healthy  exuberances  of  free  insti- 
tutions in  a  progressive  civilization. 

Perhaps  since  Chief-Justice  Taney  announced  the 
decision  in  the  case  of  Dred  Scott,  no  judgment 

159 


CERTAINTY   AND   JUSTICE 

of  the  Supreme  Court  lias  evoked  wider  interest, 
suscitated  more  controversy,  and  elicited  greater 
divergence  of  views  than  tliat  in  the  case  of  the 
United  States  v.  the  Standard  Oil  Company}  Yet 
this  case  differs  from  the  great  epoch-making  deci- 
sions of  the  Supreme  Court  of  the  United  States, 
such  as  Marhury  v.  Madison,  McCidloiigh  v.  Mary- 
land, the  Dred  Scott  case  itself,  the  Income  Tax 
case,  and  the  recent  Insular  cases,  in  that  here  no 
question  of  our  organic  law  is  involved.  The 
Supreme  Court  was  not  required  to  pass  upon  any 
great  question  of  constitutional  or  public  law  in  pur- 
suance of  that  great  power  conferred  upon  it 
by  the  Constitution  and  which  is  exercised  by  no 
other  supreme  tribunal  of  any  of  the  great  nations 
over  their  supreme  legislature. 

The  decision  of  the  court  in  the  present  case  was 
in  the  exercise  of  one  of  the  most  elemental,  indis- 
pensable functions  of  the  judiciary — viz.,  the  inter- 
pretation of  statutes.  In  the  terse  and  elegant 
English  of  Mr.  Justice  Holmes : 

"Furthermore,  while  at  times  judges  need  for 
their  work  the  training  of  economists  or  states- 
men, and  must  act  in  view  of  their  foresight  of  con- 
sequences, yet  when  their  task  is  to  interpret  and 
apply  the  words  of  a  statute  their  function  is  merely 
academic  to  begin  with — to  read  English  intelli- 
gently— and  a  consideration  of  consequences  comes 

>22I   U.   S.,   I. 

1 60 


THE    RULE    OF    REASON 

into  play,  if  at  all,  only  when  the  meaning  of  the 
words  used  is  open  to  reasonable  doubt."  (North- 
ern Securities  Co.  v.  The  United  States,  193  U.  S., 
p.  401.) 

Human  ingenuity  has  as  yet  failed  to  draught  a 
law  of  such  precision  and  clarity  that  no  man  can 
be  found  who  is  not  willing  to  draw  its  interpreta- 
tion into  question.  This  calls  to  mind  the  classic 
illustration  of  the  leech  who  was  prosecuted  for 
having  bled  a  patient  in  the  town  of  Bologna,  the 
law  decreeing  that  "whoever  drew  blood  in  the 
streets  should  be  punished  with  the  utmost  sever- 
ity." The  prosecution  in  that  case  evidently  be- 
lieved in  the  strict  construction  of  the  law,  but  even 
at  that  ancient  date  the  more  liberal  view  prevailed 
and  the  case  was  held  not  to  be  within  the  intention 
of  the  lawmaker.  It  has  been  well  said  that  the 
pole  star  of  judicial  construction  must  be  the  inten- 
tion of  the  legislature,  however  difficult  this  may  be 
to  ascertain.  It  is  well  put  by  Mr.  Justice  Swayne 
(23  Wall,  374-380)  : 

"A  thing  may  be  within  the  letter  of  a  statute  and 
not  within  its  meaning,  and  within  its  meaning 
though  not  within  its  letter.  The  intention  of  the 
lawmaker  is  the  law." 

That  quaint  old  law-writer,  Plowden,  cites  a  case 
holding  that  a  statute  of  Edward  II  enacting  that  a 

i6r 


CERTAINTY    AND   JUS'I'ICK 

prisoner  "who  breaks  jail  shall  be  guilty  of 
felony"  does  not  extend  to  a  prisoner  who 
breaks  out  when  the  prison  is  on  fire,  "for  he 
is  not  to  be  hanged  because  he  would  n(jt  stay  to  be 
burned." 

But  in  ascertaining  the  intent  of  the  lawmaker 
and  the  object  or  purpose  of  a  statute,  not  only  the 
contemporaneous  situation,  but  the  historic  past, 
will  be  examined  to  shed  light  upon  that  intention, 
where  ambiguity  or  obscurity  exists.  A  govern- 
ment in  which  there  is  no  organ  having  power  to 
determine  questions  arising  under  those  general 
rules  of  human  conduct  which  we  call  laws,  would 
be  necessarily  anarchic.  This  is  so  generally 
recognized  that  the  great  French  Code  Civil  (Code 
Napoleon)  prescribes  that  no  judge  shall  refuse  to 
interpret  a  statute  because  of  its  obscurity  or  am- 
biguity. 

The  wide-spread  interest  in  the  trust  cases  is  due 
to  the  fact  that  the  question  with  which  the  statute 
deals — "monopoly" — has  become  the  main  political 
and  economic  problem  of  the  day.  The  develop- 
ment of  business  in  the  United  States  necessarily 
requires  that  there  shall  be  some  legal  rule  by  which 
the  validity  and  legality  of  the  large  aggregations 
of  capital  shall  be  determined. 

"Monopoly"  is  no  new  thing,  nor  is  the  dread 
which  it  at  present  seems  to  inspire  peculiar  to  our 

162 


THE    RULE    OF   REASON 

people,  for  we  find  that  in  a.d.  483  the  Emperor 
Zeno  issued  an  edict  as  follows : 

"We  command  that  no  one  may  presume  to  ex- 
ercise a  'monopoly'  of  any  kind  of  clothing,  or  of 
fish,  or  of  any  other  thing  serving  for  food,  or  for 
any  other  use,  whatever  its  nature  may  be,  and 
if  any  one  shall  presume  to  practice  a  'monopoly,' 
let  his  property  be  forfeited  and  himself  condemned 
to  perpetual  exile.  And  in  regard  to  the  principals 
of  other  professions,  if  they  shall  venture  in  the 
future  to  fix  a  price  upon  their  merchandise,  and 
to  bind  themselves  by  agreements  not  to  sell  at  a 
a  lower  price,  let  them  be  condemned  to  pay  fifty 
pounds  of  gold." 

Coming  down  to  more  recent  times  we  find   that 
the  Court  of  King's  Bench  in  171 1  declared  that: 

"Another  reason  is  the  great  abuses  these  volun- 
tary restraints  are  liable  to;  as,  for  instance,  from 
corporations  who  are  perpetually  laboring  for  ex- 
clusive advantages  in  trade  and  to  reduce  it  into 
as  few  hands  as  possible." 

The  English  and  American  law  reports  contain 
many  cases  on  combinations  and  monopolies  at  the 
common  law  and  all  of  our  States  have  some  statu- 
tory enactments  on  the  subject,  many  of  them  of 
very  recent  date  and  of  drastic  tenor. 

In  1889  the  attention  of  Congress  was  called  to 

1^3 


CERTAINTY   AND   JUSTICE 

tlie  need  for  a  federal  law  prohibitirijL^  monopolies, 
and  the  evils  of  the  so-called  trusts  were  debated 
and  denounced  in  considering  the  bill  introduced 
by  Senator  Sherman,  which  in  somewhat  amended 
form  became  the  now  famous  Sherman  Anti-trust 
Law. 

The  necessity  for  such  a  law,  if  the  federal  gov- 
ernment intended  to  take  any  part  in  prohibiting 
monopolies,  was  manifest,  since  the  federal  courts 
have  no  common-law  jurisdiction,  but  derive  their 
powers  from  the  Constitution  and  congressional 
statutes.  This  must  be  remembered  when  the  ques- 
tion arises  as  to  whether  this  act  was  merely  de- 
claratory of  the  general  common-law  rule  as  laid 
down  by  the  courts  of  England  and  America  or  fur- 
nished another  and  broader  one. 

The  sections  of  the  act  setting  forth  the  offenses 
condemned  are  as  follows : 

"Section  i.  Every  contract,  combination  in  the 
form  of  trust  or  otherwise,  or  conspiracy,  in  re- 
straint of  trade  or  commerce  among  the  several 
states  or  with  foreign  nations,  is  hereby  declared  to 
be  illegal.  Every  person  who  shall  make  any  such 
contract,  or  engage  in  any  such  combination  or 
conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof,  shall  be  punished  by 
fine  not  exceeding  $5,000,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in 
the  discretion  of  the  court. 

164 


THE   RULE   OF   REASON 

"Section  2.  Every  person  who  shall  monopolize, 
or  attempt  to  monopolize,  or  combine  or  conspire 
with  any  other  person  or  persons  to  monopolize  any 
part  of  the  trade  or  commerce  among  the  several 
states,  or  with  foreign  nations,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  punished  by  fine  not  exceeding  $5,000,  or 
by  imprisonment  not  exceeding  one  year,  or  by  both 
said  punishments,  in  the  discretion  of  the  court." 

The  statute  further  provides  for  the  use  of  the 
equitable  remedy  of  injunction.  While  a  court  of 
equity  has  no  inherent  power  to  enjoin  the  commis- 
sion of  a  criminal  act,  such  powers  may  be  and 
sometimes  are  conferred  by  statute.  This  act  is 
thus  endowed  with  a  double  aspect,  civil  and  crim- 
inal. The  more  important  cases  in  which  the  Su- 
preme Court  has  passed  upon  it  have  come  up  by 
way  of  suit  for  injunctive  relief  against  the  alleged 
monopoly  or  combination,  and  the  criminal  fea- 
tures have  been  only  incidentally  considered. 

While,  technically  speaking,  debates  may  not  be 
used  as  a  means  for  interpreting  a  statute,  yet,  as 
the  Chief  Justice  remarks  in  the  Standard  Oil 
case: 

"That  rule  in  the  nature  of  things  is  not  vicjlatcd 
by  resorting  to  debates  as  a  means  of  ascertaining 
the  environment  at  the  time  of  the  enactment  of  a 
particular  law,  that  is,  the  history  of  a  period  when 
it  was  adopted." 

165 


CERTAINTY   AND   JUSTICE 

An  examination  of  the  debates  makes  it  perfectly 
clear  that  Congress  had  in  mind  the  great  com- 
binations in  the  necessaries  of  life  which  at  that 
time  were  already  exciting  serious  attention 
throughout  the  country.  Senator  Sherman  evi- 
dently thought  that  his  bill  did  nothing  more  than 
enact  the  common  law  which  he  believed  amply  suffi- 
cient to  carry  out  the  intention  of  Congress  as  to 
the  restricting  of  monopolies.  Speaking  of  his 
first  draught  of  the  bill,  he  says: 

"It  sets  out  in  most  specific  language  the  rule  of 
the  common  law  which  prevails  in  England  and  this 
country,  especially  declared  by  the  Supreme  Court 
of  the  State  of  New  York  in  a  very  clear  and  able 
opinion,  which  I  have  here  on  my  desk."  (Bills  and 
Debates  in  Congress  relating  to  Trusts ;  Government 
Printing  House,  p.  15.) 

It  will  be  necessary  to  discuss  hereafter  the 
much-mooted  point  as  to  whether  the  Sherman  law 
was  declaratory,  as  this  has  been  the  question  about 
which  continuous  controversy  has  raged  since  the 
passage  of  the  act  down  to  the  time  of  the  Standard 
Oil  decision,  which  seems  to  have  finally  resolved 
that  problem.  At  present  it  is  sufficient  to  say  that 
the  combinations  and  monopolies  which  Congress 
had  in  mind  were,  generally  speaking,  not  difficult 
of  ascertainment;  they  evidently   were  the   great 

166 


THE    RULE   OF   REASON 

companies  which  had  been  denounced  by  poHtical 
orators  and  poHtical  platforms  for  some  time 
previous,  and  it  was  so  stated  time  after  time  in 
the  debates. 

Before  discussing  the  merits  of  the  Standard  Oil 
decision  I  will  set  forth  briefly  what  the  case  de- 
cided and  analyze  the  decision,  which  shows  that : 

( 1 )  The  interpretation  of  the  court  gives  full 
efifect  to  the  intent  of  Congress,  which  intent  must 
be  read  (a)  in  the  light  of  the  common  law  and 
(b)  in  that  of  contemporary  history,  and 

(2)  The  controversy  regarding  the  question  as 
to  whether  or  not  the  court  has  injected  the  word 
"reasonableness"  into  the  statute  is  a  mere  word 
battle  or  logomachy  due  to  a  misconception  of  the 
decisions  that  have  gone  before  and  the  true  mean- 
ing of  the  utterances  of  the  Chief  Justice  in  the 
Standard  Oil  and  Tobacco  cases. 

The  bill  of  the  United  States  against  the  Stand- 
ard Oil  Company,  covering  some  hundred  and 
seventy  pages,  sets  forth  the  history  of  that  or- 
ganization and  emphasizes  the  three  phases  through 
which  it  had  passed.  These  phases  were  ( i )  the 
combination  between  individual  firms  prior  to  1870 
into  a  corporation  known  as  the  Standard  Com- 
pany of  Ohio.  This  combination  existed  from  1872 
or  thereabouts  to  1882.  at  which  time,  as  the  court 
found,  the  defendants  then  (2)  entered  into  one  of 

167 


CERTAINTY    AND   JUSTICE 

those  agreements  which  had  come  to  be  known 
technically  as  a  "trust,"  by  which  the  stock  or 
interests  in  various  concerns  were  transferred  in 
trust  to  one  company  which  acted  for  all.  This 
arrangement  was  condemned  by  the  Supreme  Court 
of  Ohio  in  a  suit  to  dissolve  the  trust  and  there- 
after (1889),  (3),  the  company  entered  into  its 
present  status — viz.,  the  operation  of  many  sub- 
sidiary companies  through  the  Standard  Oil  Com- 
pany of  New  Jersey,  a  holding  corporation,  which 
had  acquired  and  held  a  majority  of  the  stocks 
of  the  various  corporations  engaged  in  purchasing, 
transporting,  refining,  shipping,  and  selling  oil  into 
and  among  the  various  States  and  Territories  of  the 
United  States  and  thereby  managed  and  controlled 
the  same.  It  was  this  last  phase  which  was  charged 
as  being  peculiarly  within  the  act,  the  earlier  history 
of  the  company,  especially  that  prior  to  the  passage 
of  the  Sherman  law  being  adduced  simply  as  evi- 
dence of  a  continued  and  definite  purpose,  extending 
over  some  forty  years,  to  drive  out  competitors  and 
to  monopolize  the  oil  industry  for  the  benefit  of 
the  small  group  of  magnates  who  dominated  it. 

The  court  holds  that  the  two  sections  of  the 
statute,  that  relating  to  "restraint  of  trade"  and 
that  relating  to  "an  attempt  at  monopolization," 
must  be  read  together  and  that  both  had  been  vio- 
lated by  the  acts  of  the  defendants.     The  decision 

168 


THE    RULE    OF    REASON 

of  the  circuit  court,  holding  as  an  illegal  restraint 
of  trade  and  monopoly  the  combination  f(jrmed  by 
these  numerous  defendants  and  operating  through 
the  Standard  Oil  Company  of  New  Jersey,  was 
affirmed  by  the  Supreme  Court  upon  grounds 
which  the  Chief  Justice  tersely  sums  up  as  follows: 

"(a)  Because  the  unification  of  power  and  con- 
trol over  petroleum  and  its  products  which  was  the 
inevitable  result  of  the  combining  in  the  New  Jer- 
sey corporation  by  the  increase  of  its  stock  and 
the  transfer  to  it  of  the  stocks  of  so  many  other 
corporations,  aggregating  so  vast  a  capital,  gives 
rise,  in  and  of  itself,  in  the  absence  of  countervail- 
ing circumstances,  to  say  the  least,  to  the  prima 
facie  presumption  of  intent  and  purpose  to  maintain 
the  dominancy  over  the  oil  industry,  not  as  a  re- 
sult of  normal  methods  of  industrial  development, 
but  by  means  of  combinations  which  were  resorted 
to  in  order  that  greater  power  might  be  added  than 
would  otherwise  have  arisen  had  normal  methods 
been  followed,  the  whole  with  the  purpose  of  ex- 
cluding others  from  the  trade  and  thus  centralizing 
in  the  combination  a  perpetual  control  of  the  move- 
ments of  petroleum  and  its  products  in  the  channels 
of  interstate  commerce. 

"(b)  Because  the  prima  facie  presumption  of  in- 
tent to  restrain  trade,  to  monopolize  and  to  bring 
about  monopolization  resulting  frrun  the  act  of  ex- 
panding the  stock  of  the  New  Jersey  corporation 
and  vesting  it  with  such  vast  control  of  the  oil  in- 
dustry, is  made  conclusive  by  considering  ( i )  the 

169 


CKRTAINTY   AND   JUSTICE 

conduct  of  the  persons  or  corporations  who  were 
mainly  instrumental  in  bringing  about  the  extension 
of  power  in  the  New  Jersey  corpr)ratir)n  before  the 
consummation  of  that  result  and  prior  t(j  the  forma- 
tion of  the  trust  agreements  of  1879  and  1882;  (2) 
by  considering  the  proof  as  to  what  was  done  under 
those  agreements  and  the  acts  which  immediately 
preceded  the  vesting  of  power  in  the  New  Jersey 
corporation,  as  well  as  by  weighing  the  modes  in 
which  the  power  vested  in  that  corporation  has  been 
exerted  and  the  results  which  have  arisen  from  it." 
(221  U.  S.  I,  75.) 

This  result  is  concurred  in  by  all  the  members 
of  the  court,  and  if  the  decision  had  been  placed 
shortly  upon  the  ground  that  the  monopoly  created 
by  the  acts  so  adverted  to  were  within  the  statute 
the  case  would  have  evidently  caused  comparatively 
little  discussion. 

The  decision  is,  however,  of  a  more  broad  and 
general  importance,  because : 

(i)  It  explains,  and  it  is  claimed  limits,  the 
general  language  of  the  statute  so  as  to  remove 
from  its  operation  many  cases  which  the  literal 
terms  of  the  law  would  indicate  as  falling  within  it; 

(2)  It  is  claimed  to  be  in  contradiction  with 
rules  theretofore  laid  down  and  fully  established 
in  prior  decisions  during  the  past  fifteen  years. 

This  view  is  emphasized  and  dignified  by  its 
statement  with  great  earnestness  in  the  opinion  of 

170 


THE    RULE    OF    REASON 

the  then  senior  Justice  of  the  court,  Mr.  Justice 
Harlan,  who,  while  concurring  in  the  conclusion 
reached,  dissents  from  the  reasoning  of  the  court. 
So  impressed  was  this  venerable  jurist  with  the 
reasoning  of  his  brethren  of  the  court  that  he  feels 
himself  bound  "to  say  that  what  the  court  has  said 
may  well  cause  some  alarm  for  the  integrity  of 
our  institutions"  and  continues : 

"I  said  at  the  outset  that  the  action  of  the  court 
in  this  case  might  well  alarm  thoughtful  men  who 
revered  the  Constitution.  I  meant  by  this  that  many 
things  are  intimated  and  said  in  the  court's  opinion 
which  will  not  be  regarded  otherwise  than  as  sanc- 
tioning an  invasion  by  the  judiciary  of  the  consti- 
tutional domain  of  Congress — an  attempt  by  inter- 
pretation to  soften  or  modify  what  some  regard  as 
a  harsh  public  policy.  This  court,  let  me  repeat, 
solemnly  adjudged  many  years  ago  that  it  could  not. 
except  by  'judicial  legislation,'  read  words  into  the 
Anti-trust  Act  not  put  there  by  Congress,  and  which, 
being  inserted,  give  it  a  meaning  which  the  words 
of  the  Act  as  passed,  if  properly  interpreted,  would 
not  justify.  The  court  has  decided  that  it  could  not 
thus  change  a  public  policy  formulated  and  declared 
by  Congress,  that  Congress  has  paramount  author- 
ity to  regulate  interstate  commerce,  and  that  it  alone 
can  change  a  policy  once  inaugurated  by  legisla- 
tion.   .    ,    . 

"Nevertheless,  if  I  do  not  misapprehend  its  opin- 
ion, the  court  has  now  read  into  the  act  of  Con- 

171 


CERTAINTY    AND   JUSTICE 

Pfress.  words  which  arc  not  to  he  found  there,  and 
has  thcrehy  done  that  which  it  adjiid^'cd  in  1896 
and  1898  could  not  he  rlone  without  violating  the 
Constitution — namely,  hy  interpretation  of  a  statute 
changed  a  public  policy  declared  by  the  legislative 
department. 

"To  overreach  the  action  of  Congress  merely  by 
judicial  construction,  that  is,  by  indirection,  is  a 
blow  at  the  integrity  of  our  governmental  system, 
and  in  the  end  will  prove  most  dangerous  to  all." 

The  elaborate  opinion  of  Chief  Justice  White 
is  evidently  designed  to  show  that  the  course  of 
decisions  heretofore  has  been  uniform  and  that 
whatever  isolated  expressions  may  be  found  as  to 
the  interpretation  to  be  put  upon  the  statutes  the  re- 
sults reached  in  each  case  have  adequately  effected 
the  intent  of  Congress. 

The  difficulty  confronting  the  Chief  Justice  arose 
from  the  interpretation  to  be  given  the  words  "in 
restraint  of  trade."  This  language  of  the  statute 
came  before  the  Supreme  Court  for  the  first  time 
in  the  now  famous  case  of  the  United  States  v. 
the  Freight  Association  (166  U.  S.,  290).  That 
case  involved  a  combination  of  railroad  companies 
which  had  entered  into  an  agreement  fixing  freight 
rates.  The  government  attacked  this  combination 
on  the  ground  that  it  was  in  restraint  of  trade. 
Mr.  James  C.  Carter,  with  his  extraordinary-  erudi- 
tion and  ingenuity,  defended  the  combination  on 

172 


THE    RULE    OF    REASON 

two  grounds:  first,  that  the  Sherman  Act  did  not 
apply  to  railroad  companies,  as  these  companies 
were  subject  to  regulation  by  act  of  Congress  in 
a  manner  that  did  not  apply  to  ordinary  private 
corporations,  and  as  public  utilities  were  not  with- 
in the  fair  intendment  of  the  act,  since  the  right 
which  the  State  had  to  fix  rates  was  inconsistent 
with  the  idea  of  a  monopoly  menacing  to  the  pub- 
lic weal;  and,  second,  that  the  record  showed  the 
rates  to  have  been  reasonable  and  proper  and  that, 
under  the  doctrine  of  the  common  law,  of  which 
the  Sherman  Act  was  merely  declaratory,  a  con- 
tract which  reasonably  restrained  trade  was  not  in- 
volved. The  first  question  was  the  one  mainly  dis- 
cussed and  the  court  found  that  the  act  was 
applicable  to  railroads.  Incidentally  I  may  say 
that  our  New  York  courts  take  what  certainly 
seems,  at  least  from  an  economic  standpoint,  the 
sounder  view  and  exclude  public  utilities  from  the 
general  category  of  monopolies  and  restraints  on 
trade.  (Matter  of  Attorney  General  v.  Consoli- 
dated Gas  Company,  124  App.  Div.,  401.)  I  can- 
not but  feel  that  much  of  the  difficulty  and  C(mi fu- 
sion from  which  the  business  of  the  country  has 
suffered  might  have  been  avoided  had  the  majority 
of  the  court  assented  to  the  latter  view. 

The  court  in  the  Freight  Association  case  further 
held  that  they  were  unwilling  to  Consider  whether 

173 


CERTAINTY    AND   JUSTICE 

the  rates  in  ciuesti(^n  were  in  themselves  reasonable, 
since  the  terms  of  the  statute  were  absolute  and 
categoric  and  forbade  all  restraints  of  trade 
whether  reasonable  or  not. 

"By  the  simple  use  of  the  term  'contract  in  re- 
straint of  trade,'  all  contracts  of  that  nature, 
whether  valid  or  otherwise,  would  be  included,  and 
not  alone  that  kind  of  contract  which  was  invalid 
and  unenforceable  as  being  in  unreasonable  restraint 
of  trade.  When,  therefore,  the  body  of  an  act  pro- 
nounces as  illegal  every  contract  or  combination  in 
restraint  of  trade  or  commerce  among  the  several 
states,  etc.,  the  plain  and  ordinary  meaning  of  such 
language  is  not  limited  to  that  kind  of  contract  alone 
which  is  in  unreasonable  restraint  of  trade,  but  all 
contracts  are  included  in  such  language,  and  no 
exception  or  limitation  can  be  added  without  plac- 
ing in  the  act  that  which  has  been  omitted  by  Con- 
gress." {United  States  v.  Freight  Association,  i66 
U.  S.,  p.  328.) 

This  utterance  of  the  court  was  unnecessary  to 
the  decision  of  the  case  and  was  what  is  termed  by 
lawyers  an  obiter  dictum,  a  statement  or  argument 
not  logically  necessary  for  sustaining  the  conclusion 
or  judgment  reached,  since  the  agreement  would 
certainly  have  been  invalid  under  the  common  law 
rule.  I  am  convinced  that  it  is  this  dictum  in  the 
opinion  of  Mr.  Justice  Peckham,  writing  for  the 
majority  of  the  court,  which  has  led  to  the  futile 

174 


THE    RULE   OF   REASON 

and  academic  discussion  as  to  the  rule  of  "reasona- 
bleness." 

The  opinion  in  the  Freight  Association  case  in 
my  view  misapprehends  the  real  scope  of  the  com- 
mon law.  The  common  law,  about  which  so  much 
has  been  said,  is  not  really  difficult  of  ascertain- 
ment; its  general  propositions  regarding  this  class 
of  cases  are  clear  enough,  however  difficult  of  con- 
crete application. 

There  were  three  categories  of  illegal  agreements 
restraining  trade  known  to  the  common  law : 

(i)     Contracts  in  restraint  of  trade; 

(2)  Combinations  or  conspiracies  in  restraint 
of  trade;  and 

(3)  Monopolies. 

I.  Contracts  in  restraint  of  trade  had  a  fixed 
and  definite  meaning  and  are  referred  to  in  the 
Year  Books,  or  law  reports,  of  the  fourteenth 
century.  Such  a  contract  was  one  by  which  a  per- 
son selling  his  business  or  trade  contracted  that  he 
would  not  further  carry  on  such  business.  The 
object  of  the  contract  was  to  protect  the  vendee 
against  the  competition  of  his  vendor,  which  nii^dit 
easily  have  made  his  purchase  valueless.  In  the 
earliest  times  any  such  contract  was  held  invalid, 
because  the  man  who  contracted  not  to  carry  on 
his  trade  was  abridging  his  freed^im  and  was  liable 

175 


CERTAINTY    AND   JUSTICE 

to  become  a  public  charge.  Ciradually,  however, 
these  agreements  came  to  be  recognized  as  vahd 
within  certain  limitations.  Where  it  was  evident 
that  the  object  of  the  agreement  was  merely  to  as- 
sure the  vendee  the  possession  of  the  good-will  of 
his  business  and  where  the  limitation  was  not  such 
as  to  indicate  that  the  primary  object  of  the  agree- 
ment was  to  monopolize  the  trade,  but  was  merely 
a  reasonable  accompaniment  of  a  contract  of  sale, 
it  was  held  valid.  The  general  rule  consequently 
came  to  be  that  a  partial  restraint  of  trade  would 
be  valid  while  a  general  restraint  was  not.  For 
instance,  a  baker  selling  his  shop  might  validly 
contract  that  he  would  not  carry  on  his  trade  in 
London,  but  he  could  not  agree  that  he  would  not 
carry  it  on  in  England,  as  this  would  have  been 
unnecessary  to  the  protection  of  the  vendee  and 
hence  unreasonable  and  oppressive,  indicating  the 
primary  purpose  of  the  agreement  to  be  the  cre- 
ation of  a  monopoly  rather  than  the  protection  of 
a  business  good-will. 

With  the  changes  in  transportation  and  industry 
the  question  of  partial  or  general  restraint  of  trade 
lost  much  of  its  significance,  and  the  query  was 
whether  the  contract  of  restraint  was  "reasonable" 
or  "unreasonable."  This  category  of  reasonableness 
at  the  common  law  is  not  vague  and  subjective,  but 
is  extremely  concrete  and  clear.     It  w^as  a  question 

176 


THE    RULE    OF    REASON 

for  the  court  and  jury  in  each  case  to  decide  upon 
the  facts  as  to  whether  the  contract  in  restraint 
of  trade  was  merely  collateral  or  ancillary  to  the 
contract  of  sale  designed  to  protect  the  good-will 
of  the  business  purchased.  If  so,  such  indirect  ur 
partial  restraint  of  trade  was  considered  as  a  rea- 
sonable exercise  of  the  right  of  free  contract. 
When,  on  the  other  hand,  it  appeared  that  such  a 
contract  had  for  its  main  object  restraint  of  trade 
or  practical  monopoly,  then,  however  adroitly  the 
agreement  might  be  phrased,  the  court  would  hold 
it  an  unreasonable  exercise  of  the  liberty  of  con- 
tract and  void  as  directly  restraining  trade. 

2.  I  am  convinced  that  the  court  in  the  Freight 
Association  case  confused  this  very  distinct  class 
of  contracts  in  restraint  of  trade  with  a  very  differ- 
ent legal  category — namely,  combinations  in  re- 
straint of  trade.  By  this  term  the  common  law 
indicated  an  agreement  among  various  persons 
maintaining  separate  business  establishments  to  fix 
or  in  some  way  regulate  the  prices  or  the  output 
of  the  various  establishments.  Such  contracts  have 
been  always  and  at  all  times  contrary  to  the  policy 
of  the  common  law  and  to  them  no  criterion  of 
reasonableness  was  applicable.  (See  Justice 
Holmes's  dissent,  193  U.  S.,  400.) 

Agreements  having  for  their  object  a  direct  re- 
straint of  trade,  by  interfering  with  the  rights  of 

177 


CERTAINTY   AND   JUSTICE 

each  of  the  parties  thereto  to  sell  at  what  price 
he  pleased  or  restricting  the  output,  necessarily 
fell  within  the  inhibition  of  the  law  and  were  in- 
valid. The  rule  is  very  clearly  stated  in  an  opinion 
of  the  Court  of  Appeals  of  New  York.  This  case 
dealt  with  a  combination  between  dealers  of  coal  in 
the  city  of  Lockport  to  fix  the  rate  at  which  coal 
should  be  sold.  The  members  of  the  agreement 
were  indicted  under  the  section  of  the  Penal  Code 
making  it  a  misdemeanor  to  commit  "any  act  in- 
jurious to  trade  or  commerce."  The  same  argu- 
ment was  used  in  defense  of  the  combination  as  in 
the  Trans-Missouri  case,  that  the  rates  were  fair 
and  reasonable.  The  court  evidently  did  not  con- 
sider that  there  was  any  difference  between  the 
meaning  of  the  statute  and  the  general  rule  of 
common  law,  and  dismissed  the  argument  as  to  the 
reasonableness  of  rates  by  saying: 

"But  the  question  here  does  not.  we  think,  turn 
on  the  point  whether  the  agreement  between  the 
retail  dealers  in  coal  did,  as  matter  of  fact,  result 
in  injury  to  the  public  or  to  the  community  in 
Lockport.  The  question  is,  was  the  agreement,  in 
view  of  what  might  have  been  done  under  it  and 
the  fact  that  it  was  an  agreement  the  effect  of 
which  was  to  prevent  competition  among  the  coal 
dealers,  one  upon  which  the  law  affixes  the  brand 
of  condemnation. 

"The  gravamen  of  the  offense  of  conspiracy  is 
178 


THE    RULE    OF    REASON 

the  combination.  Agreements  to  prevent  competi- 
tion in  trade  are  in  contemplation  of  law  injurious 
to  trade,  because  they  are  liable  to  be  injuriously 
used. 

"The  price  of  coal  now  fixed  by  the  exchange  may 
be  reasonable  in  view  of  the  interests  both  of  deal- 
ers and  consumers,  but  the  organization  may  not 
always  be  guided  by  the  principle  of  absolute  jus- 
tice. 

"If  agreements  and  comljinations  to  prevent  com- 
petition in  prices  are  or  may  be  hurtful  to  trade,  the 
only  sure  remedy  is  to  prohibit  all  agreements  of 
that  character."  (People  v.  Sheldon,  139  N.  V., 
pp.  263-265.) 

Still  more  recently  the  common  law  doctrine  has 
been  lucidly  expounded  by  the  New  York  Court 
of  Appeals  in  a  suit  brought  on  an  agreement  be- 
tween producers  of  Hudson  River  bluestone,  who 
controlled  nearly  ninety  per  cent,  of  the  amount 
sold  in  New  York.  It  was  urged  that  the  jury 
should  be  allowed  to  pass  upon  the  reasonableness 
of  the  prices,  but  the  court  held  the  question  im- 
material in  this  class  of  cases  and  difTerentiated 
them  from  those  contracts  which  involved  the 
withdrawal  of  a  vendor  from  business  and  in 
which  the  restraint  was  incidental  to  a  sale 
rather  than  constituting  the  primary  purpose  of  the 
agreement. 

The  court  said : 

179 


CERTAINTY   AND   JUSTICE 

"It  may  be  conceded  that  one  of  its  purposes  was 
to  enable  the  ])arties  to  obtain  reasonable  prices,  but 
it  gave  them  the  power  to  fix  arbitrary  and  unrea- 
sonable prices.  The  scope  of  the  contract,  and  not 
the  possible  self-restraint  of  the  parties  to  it,  is  the 
test  of  its  validity.  They  could  raise  prices  to  what 
they  supposed  the  market  would  bear,  and  as  they 
expected  to  supply  nearly  the  entire  demand  of  the 
market,  the  temptation  to  extortion  was  unusually 
great. 

"The  plaintiff  cites  the  cases  which  permit  the 
vendor  to  sell  his  business  with  or  without  his  plant, 
and  to  agree  with  his  vendee  that  he  will  not  by 
competition  or  other  acts  do  anything  to  injure 
what  he  sells.  ...  It  may  be  conceded  that 
the  law,  as  now  understood,  restrains  no  one  from 
selling  his  property,  nor  does  it  compel  any  one  to 
continue  a  business  which  he  can  sell,  or  finds  it  to 
his  interest  to  abandon,  much  less  to  continue  it  for 
any  time  or  in  any  particular  manner  or  place. 
However  it  may  have  been  when  trade  was  small, 
money  scarce,  opportunities  and  markets  few,  at 
present  the  public  has  little  to  fear  from  any  in- 
dividual renouncing  his  calling  and  business  in  favor 
of  another,  and  seeking  a  new  field  of  activity. 
Contracts  between  individuals  to  that  effect  are  not 
in  general  restraint  of  trade.  But  the  case  before 
us  is  of  a  different  kind.  It  is  one  of  such  a  com- 
bination among  many  dealers  as  threatened  a  mo- 
nopoly, with  which  the  individual  would  be  prac- 
tically powerless  to  compete,  and  the  many  consum- 
ers who  would  be  severally  exposed  and  coerced 

1 80 


THE    RULE    OF    REASON 

would  be  either  compelled  to  submit  to  its  exactions, 
or  to  forego  the  purchase  of  the  commodity  of  cus- 
tomary use  needful  to  them,  and  but  for  this  mo- 
nopoly obtainable  in  the  market  at  a  reasonable 
price.  The  same  evil  principle  pervades  both  large 
and  small  combinations;  all  are  alike  offenders,  dif- 
fering in  degree,  but  not  in  kind.  And  hence  it  is 
that  contracts  by  which  the  parties  to  them  com- 
bine for  the  purpose  of  creating  a  monopoly  in  re- 
straint of  trade,  to  prevent  competition,  to  control 
and  thus  to  limit  production,  to  increase  prices  and 
maintain  them,  are  contrary  to  sound  public  policy 
and  are  void."  {Cummings  i'.  Union  Blue  Stone 
Co.,  164  N.  Y.,  pp.  404,  405.) 

The  emphasis  placed  upon  the  words  "reason- 
able" and  "the  light  of  reason"  by  the  court  in 
the  Standard  Oil  case  was  perhaps  unfortunate. 
It  is  quite  probable  that  for  the  words  "reasonable" 
and  "unreasonable"  with  regard  to  restraints  of 
trade  the  words  "direct"  and  "indirect"  restraints 
could  be  advantageously  substituted.  This  would 
put  the  test  of  validity  in  a  clearer,  less  subjective 
and  metaphysical  light  and  distinguish  between  com- 
binations which  have  for  their  primary  purpose 
restraint  of  trade  and  those  contracts  which  may 
incidentally  restrain  trade,  but  whose  main  (i!)icct 
is  the  sale  of  a  business. 

The  identity  between  the  test  of  reason  and  that 
of  directness  is  recognized  by  the  Chief  Justice  in 

181 


CERTAINTY    AND    JUSTICE 

the   Standard   Oil   case,   for  he  says,   referring  to 
the  rule  of  reason : 

"From  this  it  follows,  since  that  rule  and  the 
result  of  the  test  as  to  direct  or  indirect,  in  their 
ultimate  aspect,  come  to  one  and  the  same  thing, 
that  the  difference  between  the  two  is  therefore  only 
that  which  obtains  between  things  which  do  not 
differ  at  all." 

3.  The  third  common  law  concept  comprised 
in  the  statute  is  that  of  "monopoly."  "Monopoly," 
strictly  speaking,  at  common  law  could  only  arise 
from  a  Crown  grant  and  is  defined  by  Lord  Coke 
as  follows: 

"  'A  monopoly  is  an  institution,  or  allowance  by 
the  king  by  his  grant,  commission,  or  otherwise  to 
any  person  or  persons,  bodies  politic  or  corporate,  of 
or  for  the  sole  buying,  selling,  making,  working,  or 
using  of  anything,  whereby  any  person  or  persons, 
bodies  politic  or  corporate,  are  sought  to  be  re- 
strained of  any  freedom  or  liberty  that  they  had 
before,  or  hindered  in  their  lawful  trade.'  " 

It  is  quite  evident  that  no  such  conception  of 
monopoly  is  here  involved  and  that  the  great  com- 
binations of  to-day  are  not  "monopolies"  in  this 
narrow  sense,  but  are  rather  capitalistic  aggregates 
whose  size  and  consequent  power  permit  them  to 
effectually  prevent  any  real  competition  and  thus 

182 


THE    RULE    OF    REASON 

effect  those  evils  which  the  common  law  attributes 
to  monopoly. 

The  purpose,  however,  of  the  common  law  was 
to  preserve,  as  far  as  possible,  freedom  of  contract, 
and  it  was  felt  that  this  was  menaced  either  by 
a  Crown  monopoly,  combinations  in  restraint  of 
trade,  or  unreasonable  contracts  in  restraint  of 
trade.  In  addition  to  all  these,  there  were  at  com- 
mon law  certain  peculiar  contracts  called  "eny^ross- 
ing"  or  "forestalling"  which  had  for  their  object 
the  obtaining  of  supplies  of  the  necessaries  of  life 
with  a  view  to  completely  controlling  the  market. 
These  laws  were  repealed  in  the  early  part  of  the 
last  century,  but  have  an  analogy  in  the  anti-option 
laws  found  in  some  of  our  States. 

Had  the  Supreme  Court,  therefore,  in  the  Freight 
case  and  the  Traffic  case,  considered  the  language 
of  the  act  in  the  light  of  the  common  law  meaning 
of  the  terms  there  used,  they  would  have  had  no 
difficulty  in  coming  to  the  conclusion  that  a  com- 
bination of  a  number  of  persons  or  corporations 
for  the  purpose  of  fixing  prices  was  contrary  to 
the  common  law  as  known  in  England  am!  America. 
The  statement  of  the  court  in  tho.se  cases  that  they 
were  bound  to  take  the  language  of  the  law  literally 
and  condemn  all  contracts  in  restraint  of  trade, 
whether  reasonable  or  unreasonable,  was  founded 
upon  an  apparent  misconception  of  the  common  law 

183 


CKRTAINTY    AND   JUSTICE 

and  a  failure  to  distinguish  between  "contracts" 
and  "combinations."  It  is  perfectly  evident  that 
the  court  was  right  in  holding  that,  however  reason- 
able the  rates  fixed  by  the  Freight  Association  may 
have  been,  the  very  fact  that  the  objective  of  the 
agreement  was  the  fixing  of  rates  made  it  illegal 
per  sc.    So  broad  was  the  dictum  of  the  court  that — 

"By  the  simple  use  of  the  term  'contract  in  re- 
straint of  trade,'  all  contracts  of  that  nature, 
whether  valid  or  otherwise,  would  be  included,  and 
not  alone  that  kind  of  contract  which  was  invalid 
and  unenforceable  as  being  in  unreasonable  restraint 
of  trade." 

— it  became  necessary  seriously  to  qualify  it  in  the 
next  case.  In  fact,  Mr.  Justice  Peckham's  opinion 
in  the  Freight  case  itself  recognizes  the  distinction 
between  "direct"  and  "indirect"  contracts  in  re- 
straint of  trade,  for  he  says: 

"A  contract  which  is  the  mere  accompaniment  of 
the  sale  of  property,  and  thus  entered  into  for  the 
purpose  of  enhancing  the  price  at  which  the  vendor 
sells  it.  which  in  effect  is  collateral  to  such  sale,  and 
where  the  main  purpose  of  the  whole  contract  is  ac- 
complished by  such  sale,  might  not  be  included, 
within  the  letter  or  spirit  of  the  statute  in  question." 

In  the  Joint  Traffic  case  practically  the  same 
agreement  was  again  brought  before  the  court  and 

184 


THE    RULE    OF   REASON 

the  question  reargued  by  the  same  counsel;  it  was 
insisted  that  the  construction  of  the  court  was  such 
as  to  interfere  with  ordinary  business  and  all  real 
freedom  of  contract,  and  a  number  of  instances 
were  cited,  such  as  the  formation  of  a  corporation 
to  carry  on  any  particular  line  of  business  by  those 
previously  engaged  therein  or  a  contract  of  partner- 
ship betw^een  two  persons  previously  in  the  same 
line  of  business,  to  which  the  court  replied : 

"We  are  not  aware  that  it  has  ever  been  claimed 
that  a  lease  or  purchase  by  a  farmer,  manufacturer 
or  merchant  of  an  additional  farm,  manufactory  or 
shop,  or  the  withdrawal  from  business  of  any 
farmer,  merchant  or  manufacturer,  restrained  com- 
merce or  trade  within  any  legal  definition  of  that 
term;  and  the  sale  of  a  good-will  of  a  business  with 
an  accompanying  agreement  not  to  engage  in  a  sim- 
ilar business  was  instanced  in  the  Trans-Missouri 
case  as  a  contract  not  within  the  meaning  of  the  act ; 
and  it  was  said  that  such  a  contract  was  collateral 
to  the  main  contract  of  sale  and  was  not  entered 
into  for  the  purpose  of  enhancing  the  price  at  which 
the  vendor  sells  his  business."  ( U.  S.  v.  Joint  Traf- 
fic Assn.,  171  U.  S.,  567,  568.) 

And  in  commenting  upon  the  case  of  Hopkins 
V.  United  States  (171  U.  S..  p.  578),  decided  at 
that  same  term,  in  which  it  was  held  that  the 
statute  applies  only  to  those  contracts  "whose  direct 

185 


CERTAINTY   AND   JUSTICE 

and    immediate   effect   is   restraint   upon   interstate 
commerce,"  the  court  said: 

"An  agreement  entered  into  for  the  purpose  of 
promoting  the  legitimate  business  of  an  individual 
or  corporation,  with  no  purpose  to  thereby  affect 
or  restrain  interstate  commerce,  and  which  does  not 
directly  restrain  such  commerce,  is  not,  as  w'e  think, 
covered  by  the  act,  although  the  agreement  may 
indirectly  and  remotely  affect  that  commerce. 

"To  suppose,  as  is  assumed  by  counsel,  that  the 
effect  of  the  decision  in  the  Trans-Missouri  case  is 
to  render  illegal  most  business  contracts  or  com- 
binations, however  indispensable  and  necessary  they 
may  be,  because,  as  they  assert,  they  all  restrain 
trade  in  some  remote  and  indirect  degree,  is  to 
make  a  most  violent  assumption  and  one  not  called 
for  or  justified  by  the  decision  mentioned ,  or  by 
any  other  decision  of  this  court."  (U.  S.  v.  Joint 
Traffic  Assn.,  171  U.  S.,  p.  568.) 

If  I  have  quoted  fully  from  these  cases,  it  is  for 
the  purpose  of  demonstrating  that  the  court  did 
not  interpret  the  statute  literally  as  forbidding  all 
contracts  or  combinations  wdiich  might  incidentally 
restrain  trade.  The  court  there  held,  and  held 
rightly,  that  the  criterion  of  the  statute  was 
whether  the  restraint  was  a  direct  or  an  indirect 
one.  As  they  refused  to  construe  the  statute  liter- 
ally the  dictum  in  the  Freight  Association  case 
that  all  contracts   fall  within  its  scope  is  scarcely 

186 


THE    RULE   OF   REASON 

consistent  with  the  remainder  of  the  opinion,  which, 
when  read  as  a  whole,  is  clear  enough. 

It  appears,  nevertheless,  regrettable  that  the  court 
distinguished  between  the  scope  of  the  common  law 
rule  and  that  of  the  statute  and  thus  misconceived, 
as  I  think,  the  application  of  the  word  "reason- 
able." At  common  law  it  would  have  been  no  de- 
fense to  any  combination  having  for  its  object  the 
fixing  of  prices  to  maintain  that  those  prices  were 
reasonable,  and  the  court  in  deciding  this  defense 
to  have  been  unsound  did  not  go  beyond  the  com- 
mon law.  The  expressions  referred  to  in  Mr.  Jus- 
tice Peckham's  opinion  explain  the  not  unnatural 
popular  misapprehension  as  to  the  meaning  of  the 
word  "reasonable,"  and  the  present  criticism  that 
the  court  has  at  this  late  date,  after  fifteen  years 
of  adjudication,  now  for  the  first  time  read  that 
word  into  the  statute. 

Had  Senator  Sherman's  original  law  .stated  that 
"(i)  all  contracts  in  unreasonable  restraint  of 
trade  and  (2)  all  combinations  and  conspiracies  in 
restraint  of  trade  are  illegal  and  void,"  it  would 
have  declared  the  common  law  rule  both  with  ac- 
curacy and  discrimination. 

It  is  evident  that  the  simjile  di.stinction  between 
"direct"  and  "indirect"  contracts  in  restraint  of 
trade  effects  the  intention  of  Congress,  which  was 
not   to  paralyze   the  industries  of   the  country  by 

187 


CERTAINTY   AND   JUSTICE 

(to  use  Mr.  Justice  Peckham's  language)  "a  most 
violent  assumption,"  but  was  to  prevent  those  agree- 
ments whose  primary  object  was  restraint. 

It  has  l>een  argued  popularly  and  the  point  has 
been  raised  in  various  cases  that  restraint  of  trade 
and  restraint  of  competition  do  not  mean  the  same 
thing.  This  point  is  fanciful  rather  than  real. 
Restraint  of  trade,  as  the  history  of  that  term  at 
the  common  law  shows,  included  any  restriction 
by  which  any  individual  or  individuals  should,  by 
voluntary  act  or  otherwise,  be  inhibited  from  carry- 
ing on  their  trade  or  business  in  their  own  way, 
which  is  equivalent  to  restraint  of  competition, 
and  the  courts  have  uniformly  so  considered  it. 
There  is,  however,  this  truth  in  the  suggestion 
that  there  may  well  be  indirect  restraints  of  com- 
petition which  may  not  in  themselves  restrain  trade. 
This,  however,  is  only  illustrative  of  the  fact 
that  the  distinction  between  the  two  classes  of 
contracts  and  combinations  is  that  between  those 
which  restrain  directly  and  those  whose  restraints 
are  merely  indirect  and  ancillary  to  some  other 
purpose. 

This  view  is  emphasized  by  the  important  case  of 
the  United  States  v.  Addyston  Pipe  and  Steel  Com- 
pany,^ which  dealt  with  a  combination  of  manufac- 
turers for  the  purpose  of  dividing  the  territory  in 

'85  Fed.  Rep.,  271. 
188 


THE    RULE    OF   REASON 

which  their  product  was  to  be  sold.  In  the  Circuit 
Court  of  Appeals  the  opinion  was  rendered  by 
Judge  Taft,  who  held  such  an  agreement  to  be  a 
combination  in  direct  restraint  of  trade  and  to  fall 
within  the  statute.  He  reviewed  in  very  exhaustive 
fashion  the  prior  cases  and  delved  deep  into  the 
common  law,  finally  concluding  that  a  combination 
among  a  number  of  persons  engaged  in  a  particular 
business  to  stifle  or  prevent  competition  and  thereby 
to  enhance  or  diminish  prices  to  a  point  above  or 
below  what  they  would  be  if  left  to  the  influence  uf 
unrestricted  competition  is  contrary  to  public  policy 
as  found  either  at  the  common  law  or  in  the  statute. 
In  this  very  case  it  was  urged  that  the  prices  at 
which  cast-iron  pipe  was  sold  were  reasonable,  to 
which  Judge  Taft  answers : 

"We  do  not  think  the  issue  an  important  one 
because,  as  already  stated,  we  do  not  think  at  com- 
mon law  there  is  any  question  of  reasonableness 
open  to  the  courts  with  reference  to  such  a  con- 
tract. Its  tendency  was  certainly  to  give  defend- 
ants the  power  to  charge  unreasonable  prices  had 
they  chosen  to  do  so." 

When  that  case  came  to  the  Supreme  Court  the 
question  mainly  considered  was  whether  the  agree- 
ment so  directly  affected  interstate  commerce  as 
to  fall  within  the  statute.     This  being  decideil  in 

189 


CERTAINTY   AND   JUSTICE 

the   affirmative,   the  combination  was  declared   il- 
legal.^ 

The  views  of  Judge  Taft  are  also  those  of  Presi- 
dent Taft,  since  in  a  recent  message  he  said : 

"It  has  been  proposed,  however,  that  the  word 
'reasonable'  should  be  made  a  part  of  the  statute 
and  then  that  it  should  be  left  to  the  court  to  say 
what  is  a  reasonable  restraint  of  trade,  what  is  a 
reasonable  suppression  of  competition,  what  is  a 
reasonable  monopoly.  I  venture  to  think  that  this 
is  to  put  into  the  hands  of  the  court  a  power  im- 
possible to  exercise  on  any  consistent  principle 
which  will  insure  the  uniformity  of  decision  essen- 
tial to  just  judgment.  It  is  to  thrust  upon  the  courts 
a  burden  that  they  have  no  precedents  to  enable  them 
to  carry,  and  to  give  them  a  power  approaching  the 
arbitrary,  the  abuse  of  which  might  involve  our 
whole  judicial  system  in  disaster." 

The  message  has  been  quoted  as  in  conflict  with 
the  views  of  the  Chief  Justice,  but  I  do  not  think 
there  is  any  real  conflict.  Of  course  there  could 
be  no  "reasonable"  monopoly,  since,  as  the  Chief 
Justice  points  out,  the  very  objective  both  of  the 
common  law  and  the  statute  is  monopoly.  The 
test  of  reason  merely  applies  to  the  question 
whether  the  combination  or  contract  aims  at  or 
tends  to  monopoly.  The  use  of  the  word  "direct" 
and  the  elimination  of  such  a  vague  phrase  as  "the 
M75  U.  S..  211. 
190 


THE    RULE   OF   REASON 

light  of  reason"  would  have  greatly  clarified  the 
situation. 

In  Swift  V.  United  States.^  a  combination  of 
beef-packers  was  equally  held  invalid,  and  it  was 
quite  clear  that  the  combination  would  have  been 
invalid  at  common  law. 

The  famous  Northern  Securities  case  involved 
a  different  state  of  affairs,  in  that  a  holding  cor- 
poration was  devised  for  the  purpose  of  controlling 
both  the  Great  Northern  and  the  Northern  Pacific 
Railway  companies.  A  grave  constitutional  problem 
was  involved  as  well  as  the  question  whether  the 
creation  of  a  corporation  for  holding  the  stock  of 
both  companies  was  a  combination  within  the  Sher- 
man Act.  The  majority  of  the  court  held  that, 
although  the  modern  form  which  the  transaction 
had  taken  differed  from  the  combinations  thereto- 
fore before  the  court,  it  was  still  in  effect  a  com- 
bination, the  object  of  which  was  to  create  a 
monopoly  and  hence  within  both  sections  of  the 
act. 

Mr.  Justice  Brewer,  however,  in  concurring  with 
the  majority  of  five  whose  votes  were  necessary 
to  the  affirmance  of  the  decree  against  the  railroads, 
dissented  from  much  that  was  said  in  that  case. 
His  opinion  is  interesting  in  that  it  again  raised 
the  perennial  question  of  reasonableness.     Refer- 

'  196  U.  S..  375- 
191 


CERTAINTY   AND   JUSTICE 

ring    to    the    Freight    Association    case,    while    he 
thinks  that  decision  correct,  he  yet  says : 

"Instead  of  holding  that  the  Anti-trust  Act  in- 
cluded all  contracts,  reasonable  or  unreasonable,  in 
restraint  of  interstate  trade,  the  ruling  shcjuld  have 
been  that  the  contracts  there  presented  were  un- 
reasonable restraints  of  interstate  trade,  and  as  such 
within  the  scope  of  the  act.  That  act,  as  appears 
from  its  title,  was  leveled  at  only  'unlawful  re- 
straints and  monopolies.'  Congress  did  not  intend 
to  reach  and  destroy  those  minor  contracts  in  par- 
tial restraint  of  trade  which  the  long  course  of  de- 
cisions at  common  law  had  affirmed  were  reasonable 
and  ought  to  be  upheld.  The  purpose  rather  was 
to  place  a  statutory  prohibition  with  prescribed  pen- 
alties and  remedies  upon  those  contracts  which  were 
in  direct  restraint  of  trade,  unreasonable  and  against 
public  policy.  Whenever  a  departure  from  common 
law  rules  and  definitions  is  claimed,  the  purpose  to 
make  the  departure  should  be  clearly  shown.  Such 
a  purpose  does  not  appear  and  such  a  departure  was 
not  intended."  (Northern  Securities  Co.  v.  U.  S., 
193  U.  S.  at  p.  361.) 

Mr.  Justice  Brewer,  like  the  present  Chief  Jus- 
tice, found  some  of  the  language  of  the  Freight 
Association  and  Joint  Traffic  cases  so  sweeping  as 
to  be  of  a  misleading  character  and  felt  that  the 
test  of  reasonableness  or  directness  should  have 
been  more  explicitly   stated.     General  expressions 

192 


THE    RULE    OF    REASON 

in  opinions  are  often  dangerous,  and  certainly  the 
expressions  used  in  the  Traffic  cases  have  caused  a 
great  deal  of  difficulty  and  confusion  both  at  the 
bar  and  in  the  world  of  business.  They  well  illus- 
trate the  wisdom  of  limiting  an  opinion  to  the  dis- 
cussion of  those  matters  necessary  to  a  disposition 
of  the  case  at  bar;  otherwise  they  may,  to  use  the 
happy  phrase  of  Mr.  Justice  McKenna,  "like  the 
exhalations  of  a  marsh,  shine  to  mislead."  (De 
Lima  v.  Bidzvcll,  182  U.  S.,  p.  205.) 

Even  after  the  decision  of  the  Northern  Securi- 
ties cases,  the  question  still  remained  whether  cer- 
tain large  concerns,  which,  claiming  to  be  the  re- 
sult of  natural  and  normal  growth,  and  disclaiming 
all  intention  of  driving  others  from  the  held  or  of 
monopolizing  any  branch  of  trade,  fell  within  the 
act.  If  the  act  were  to  be  interpreted  with 
the  scrupulous  literal  accuracy  evinced  by  some 
of  Justice  Peckham's  dicta,  it  might  reason- 
ably have  been  supposed  that  every  business  in 
the  country,  which  had  in  any  fashion  absorljcd 
the  trade  of  its  competitors,  was  obn(jxious  to 
the  law. 

So  doubtful  did  the  bar  and  the  lx?nch  feel  in 
regard  to  this  statute  that  the  presiding  judge  of 
the  Circuit  Court  of  Appeals  in  the  case  (.f  the 
United  States  v.  American  Tobacco  Company 
voiced  at  least  the  popular  view  as  to  the  const ruc- 

193 


CERIAINTY   AND   JUSTICK 

tion   theretofore    placed    upon    the   statute   by    the 
Supreme  Court  as  follows: 

"Disregarding-  various  dicta  and  following  the 
several  propositions  which  have  been  approved  by 
successive  majorities  of  the  Supreme  Court,  this 
language  (every  contract,  combination,  etc.)  is  to 
be  construed  as  prohibiting  any  contract  or  com- 
bination whose  direct  effect  is  to  prevent  the  free 
play  of  competition,  and  thus  tend  to  deprive  the 
country  of  the  services  of  any  number  of  independ- 
ent dealers,  however  small.  As  thus  construed  the 
statute  is  revolutionary.  By  this  it  is  not  intended 
to  imply  that  the  construction  is  incorrect. 
The  act  as  above  construed  prohibits  every  contract 
or  combination  in  restraint  of  competition.  Size 
is  not  made  the  test :  Two  individuals  who  have 
been  driving  rival  express-wagons  between  villages 
in  two  contiguous  states,  who  enter  into  a  combina- 
tion to  join  forces  and  operate  a  single  line,  restrain 
an  existing  competition ;  and  it  would  seem  to  make 
little  difference  whether  they  make  such  combina- 
tion more  effective  by  forming  a  partnership  or 
not."     (164  Fed.  Rep.,  pp.  701,  702.) 

Under  these  circumstances,  the  result  of  the 
Standard  Oil  case  was  awaited  with  tense  anxiety, 
and  it  was  a  cause  of  general  gratification  that 
the  judgment  was  unanimous.  It  was,  however, 
unfortunate  both  for  the  court  and  for  the  nation 
that  Mr.  Justice  Harlan  felt  constrained  to  dissent 

194 


THE    RULE    OF    REASON 

from  the  reasoning  of  his  brethren  of  the  court. 
As  he  had  concurred  with  the  majority  of  the 
court  in  the  Freight  Association  case  and  the  Joint 
Traffic  case,  it  is  evident  tliat  even  he  did  not 
read  the  statute  with  complete  hteral  accuracy  as 
applying  to  all  contracts  in  restraint  of  trade,  for 
he  took  no  exception  to  Mr.  Justice  Peckham's 
view  that  contracts  which  merely  incidentally  re- 
strained trade  were  not  within  the  statute. 

The  Chief  Justice  certainly  endeavored  to  deduce 
from  the  language  and  history  of  the  statute  and 
from  the  foregoing  cases  some  rules  by  which  it 
might  be  possible,  with  a  reasonable  degree  of 
accuracy,  to  predict  what  transactions  fall  within 
the  act.  He  analyzes  with  minuteness  and  care  the 
English  law  and  concludes  that  the  English  de- 
cisions and  statutes  were  directed  against  monop- 
olies and  those  contracts  which  may  be  considered 
to  have  resulted  in  some  of  the  injurious  conse- 
quences ascribed  to  monopolies.  It  hence  came 
about  that  contracts  or  acts  which  were  considered 
to  have  a  monopolistic  tendency,  especially  those 
which  were  thought  to  unduly  diminish  competition 
and  thus  to  enhance  prices  (in  other  words,  to 
monopolize)  came  also  in  a  generic  sense  to  be 
spoken  of  and  treated  as  they  had  been  in  England, 
as  restricting  the  due  course  uf  trade  antl  therefore 
as  monopolies  generally.     It  is  ditVicult  to  abriilge 

195 


CERTAINTY  AND   JUSTICE 

or  paraphrase  his  resume,  therefore  I  quote  it  iti 
toto: 

"In  view  of  the  common  law  anrl  the  law  in  this 
country  as  to  restraint  of  trade,  which  we  have  re- 
viewed, and  the  ilhiniinating  effect  which  that  his- 
tory must  have  under  the  rule  to  which  we  have 
referred,  we  think  it  results, 

"(a)  That  the  context  manifests  that  the  statute 
was  drawn  in  the  light  of  the  existing  practical 
contracts  which  were  in  restraint  of  trade  because 
it  groups  as  within  that  class,  not  only  contracts 
which  were  in  restraint  of  trade  in  the  subjective 
sense,  but  all  contracts  or  acts  which  theoretically 
were  attempts  to  monopolize,  yet  which  in  practice 
had  come  to  be  considered  as  in  restraint  of  trade 
in  a  broad  sense. 

"(b)  That  in  view  of  the  many  new  forms  of 
contracts  and  combinations  which  were  being 
evolved  from  existing  economic  conditions,  it  was 
deemed  essential  by  an  all-embracing  enumeration 
to  make  sure  that  no  form  of  contract  or  combina- 
tion by  which  an  undue  restraint  of  interstate  or 
foreign  commerce  was  brought  about  could  save 
such  restraint  from  condemnation.  The  statute 
under  this  view  evidenced  the  intent  not  to  restrain 
the  right  to  make  and  enforce  contracts,  whether 
resulting  from  combination  or  otherwise,  which  did 
not  unduly  restrain  interstate  or  foreign  commerce, 
but  to  protect  that  commerce  from  being  restrained 
by  methods,  whether  old  or  new,  which  would  con- 
stitute an  interference  that  is  an  undue  restraint. 

196 


THE    RULE   OF   REASON 

"(c)  And  as  the  contracts  or  acts  embraced  in 
the  provision  were  not  expressly  defined,  since  the 
enumeration  addressed  itself  simply  to  classes  of 
acts,  those  classes  being  broad  enfnigh  to  eni!)race 
every  conceivable  contract  or  combination  which 
could  be  made  concerning  trade  or  commerce  or  the 
subjects  of  such  commerce,  and  thus  caused  any  act 
done  by  any  of  the  enumerated  methods  anywhere  in 
the  whole  field  of  human  activity  to  be  illegal  if  in 
restraint  of  trade,  it  inevitably  follows  that  the 
provision  necessarily  called  for  the  exercise  of  judg- 
ment which  required  that  some  standard  should  be 
resorted  to  for  the  purpose  of  determining  whether 
the  prohibitions  contained  in  the  statute  had  or  iiad 
not  in  any  given  case  been  violated.  Thus  not 
specifying  but  indubitably  contemplating  and  re- 
quiring a  standard,  it  follows  that  it  was  intended 
that  the  standard  of  reason  which  had  been  applied 
at  the  common  law  and  in  this  country  in  dealing 
with  subjects  of  the  character  embraced  by  the 
statute,  was  intended  to  be  the  measure  used  for 
the  purpose  of  determining  whether  in  a  given 
case  a  particular  act  had  or  liad  not  brought 
about  the  wrong  against  which  the  statute  pro- 
vided." 

These  conclusions  certainly  seem  to  give  full 
effect  to  the  intention  of  Congress,  which  was  to 
confer  upon  the  federal  courts  power  to  prevent 
monopoly  and  the  wrongs  incident  to  attem|)ts  to 
monopolize,  adding  to  the  common  law  invalidity 
of  such  agreements  the  sanctions  of  criminal  law. 

197 


CERTAINTY   AND   JUSTICP: 

It  may  he  rcfjrcttahlc  tliat  the  Chief  Justice  uses 
the  terms  "unrcasonahle,"  "undue,"  "the  hght  of 
reason/'  and  "direct"  anrl  "inchrect"  as  meaning 
one  and  the  same  thing,  thus  seeming  to  create  a 
somewhat  vague  standard,  but  the  Chief  Justice 
certainly  does  not  mean  the  "reason"  of  each  in- 
dividual court  or  judge,  nor  any  philosophic  con- 
ception of  "light  of  reason."  It  is  generally  held 
that  public  service  corporations  cannot  have  their 
charges  reduced  by  the  legislature  beyond  what  is 
reasonable.  This  criterion  has  not  been  found  im- 
practicable or  even  very  difficult  of  application. 
Whether  certain  State  requirements  are  proper  exer- 
cise of  the  police  power  or  interferences  with  inter- 
state commerce  is  a  matter  which  depends  upon 
the  reasonableness  of  the  regulation,  or,  in  other 
w^ords,  whether  the  effect  upon  such  commerce  is 
merely  incidental  or  indirect.  (Smith  v.  Alabama, 
124  U.  S.,  465.) 

From  the  analysis  already  made  it  seems  to  us 
that  the  language  of  the  statute  and  the  results  of 
all  the  decisions  as  to  the  Anti-trust  Act  bear  out 
the  view  that  all  contracts  and  combinations  zvhich 
directly  tend  to  restrain  trade  are  unlawful,  and 
that  all  attempts  to  monopolize,  brought  about  by 
whatever  methods,  whether  old  or  new,  are  equally 
within  the  statute. 

It  may,  nevertheless,  be  thought  that  these  criteria 
198 


THE    RULE   OF   REASON 

are  of  so  general  a  character  as  to  be  of  little  value 
in  predicting  the  results  in  specific  cases.  This  is 
undoubtedly  true,  and  yet  I  submit  that,  under  the 
circumstances,  the  court  could  not  have  dealt  with 
the  statute  in  any  other  way.  It  has  been  urged 
that  it  would  be  probably  illegal  and  certainly  im- 
moral to  indict  any  one  for  having  unreasonably 
restrained  trade,  since  the  criminal  law  should  be 
sufificiently  certain  to  give  persons  some  definite 
notice  as  to  what  constitutes  its  infringement. 
While  this  argument  has  seeming  force,  many 
statutes  are  equally  and  perhaps  unavoidably  as 
vague.  One  is  forbidden,  under  severe  penalty, 
from  driving  negligently  along  the  highway,  and 
it  is  for  the  judge  to  charge  the  jury  what  consti- 
tutes negligence.  So  it  must,  under  this  statute,  be 
for  the  judge  to  charge  the  jury  as  to  what  con- 
stitutes combinations  in  restraint  of  trade  or  an 
attempt  to  monopolize.  A  monopoly  in  the  modern 
sense  is  a  capitalistic  monopoly  and  may  be  no  more 
than  a  great  aggregate  of  wealth  concentrated  under 
one  control  which  renders  in  actual  practice  all  real 
attempts  at  competition  ineffective. 

The  decision  in  the  case  of  the  United  States  v. 
American  Tobacco  Company  (221  U.  S.,  106)  but 
reaffirms  and  reiterates  the  doctrine  enunciated  in 
the  Standard  Oil  case  and  applies  it  to  a  more  com- 
plex and  difficult  situation.     The  Chief  Justice  in 

199 


CERTAINTY   AND   JUSTICE 

that  opinion  explains  the  necessity  for  a  fair  and 
liberal  construction  of  the  statute,  one  which  will 
carry  out  the  intent  of  Congress  to  check  monop- 
olies while  not  interfering  with  those  (ordinary  and 
normal  contracts  which  it  was  the  object  of  the 
statute  to  protect.  The  view  of  the  Chief  Justice 
may  be  summed  up  by  saying  that  a  liberal  con- 
struction of  the  statute  alone  will  make  it  really 
effective,  and  as  so  construed  it  must  be  declaratory 
of  the  common  law  rule  which  had  in  view  the  same 
purpose  as  the  act — namely,  the  protection  of  free- 
dom of  contract  against  impairment  by  monopolies. 
A  narrow,  literal  construction  would  thus  not  only 
be  anti-historic,  but  wholly  nugatory  of  the  intent 
of  Congress,  in  that  it  would  paralyze  that  ordinary 
and  natural  trade  development  whose  main  purpose 
it  was  to  safeguard.  The  Chief  Justice  thus  ap- 
positely puts  it : 

"The  soundness  of  the  rule  that  the  statute  should 
receive  a  reasonable  construction,  after  further  ma- 
ture deliberation,  we  see  no  reason  to  doubt.  Indeed, 
the  necessity  for  not  departing  in  this  case  from  the 
standard  of  the  rule  of  reason  which  is  universal  in 
its  application  is  so  plainly  required  in  order  to 
give  effect  to  the  remedial  purposes  which  the  act 
under  consideration  contemplates,  and  to  prevent 
that  act  from  destroying  all  liberty  of  contract  and 
all  substantial  right  to  trade,  and  thus  causing  the 
act  to  be  at  war  with  itself  by  annihilating  the  fun- 

200 


THE    RULE    OF    REASON 

damental  right  of  freedom  to  trade  which,  on  the 
very  face  of  the  act,  it  was  enacted  to  preserve,  is 
illustrated  by  the  record  before  us." 

It  is  possible  that  in  future  the  criminal  feature 
of  the  law  will  be  more  largely  relied  upon  by  the 
government  as  a  deterrent  to  monopoly.  In  this 
event  the  question  of  criminal  intent  will  evidently 
be  of  very  great  importance.  The  general  legal 
doctrine  is  that  there  is  no  crime  without  intent, 
but  this  is  only  a  rule  of  construction  which  may 
be  negatived  by  the  legislature.  There  is  a  class 
of  cases  in  which  the  courts  have  held  that  the 
plain  language  of  statutes  made  immaterial  the 
question  of  intent.  In  such  cases  the  fact  that  the 
persons  charged  have  violated  the  express  prohibi- 
tion of  the  law  is  sufficient  ground  for  conviction. 
A  typical  case  of  this  kind  is  one  arising  under  the 
statute  of  New  York  preventing  the  sale  of  im- 
pure or  adulterated  milk.  While  it  was  admitted 
that  adulterated  milk  had  been  sold,  proof  was  of- 
fered that  this  was  without  the  knowledge,  and 
therefore  the  intent,  of  the  defendant,  to  which 
the  Court  of  Appeals  answers: 

"As  the  law  stands,  knowledge  or  intention  forms 
no   element   of   the   offense.      The   act,   alone,    ir- 
respective   of    its    motive,    constitutes    the    crime. 
.     Experience  has  taught  the  lesson  that  rc- 

201 


CERTAINTY   AND   JUSTICE 

pressivc  measures  which  depend  for  their  efficiency 
upon  proof  of  the  dealer's  knowledge  and  of  his 
intent  to  deceive  and  defraud  are  of  little  use  and 
rarely  accomplish  their  purpose."  (People  v.  Kibler, 
io6  N.  Y.,  pp.  323,  324.) 

While  it  still  is  open  to  question  whether  the 
Sherman  Law  is  in  the  same  category,  yet,  where 
a  monopoly  has  been  actually  created,  it  will  prob- 
ably be  well-nigh  impossible  for  defendants  to 
escape  upon  the  ground  of  lack  of  intent.  Persons 
are  always  presumed  to  have  intended  the  natural 
effect  of  their  acts,  and  the  doctrine  of  intent  even 
w^here  applied,  especially  in  cases  of  purely  statutory 
delinquencies,  has  been  beaten  out  very  thin. 

There  may  be  and  probably  are  sound  objections 
to  the  statute  on  economic  grounds,  but  I  do  not 
believe  that  it  can  be  successfully  challenged  upon 
the  ground  of  vagueness  or  uncertainty.  It  has 
always  been  difficult  to  draw  the  line  between  "di- 
rect" and  "indirect"  contracts  and  combinations 
restraining  trade.  The  difficulty  is  more  acutely 
and  generally  pressing  to-day  because  of  the  ap- 
proach to  actual  monopoly  in  so  many  of  the 
necessaries  of  life. 

I  cannot  think  that  Mr.  Justice  Harlan  was  justi- 
fied in  considering  the  present  decision  as  really  at 
variance  with  former  decisions.  Taking  these  de- 
cisions together  as  a  coherent  whole,  there  can  be 

202 


THE    RULE    OF    REASON 

little  or  no  doubt  that  the  result  reached  in  every 
one  was  similar  to  tliat  which  would  have  been 
reached  upon  the  assumption  that  the  statute  was 
merely  declaratory  of  the  common  law.  It  seems 
deplorable  that  so  much  confusion  should  have 
arisen  over  what  now  appears  to  have  been  a  battle 
of  words. 

Here  again  we  find  the  continuing  conflict  in 
society  between  justice  and  certainty.  The  war- 
fare against  modern  monopoly  is  being  carried  on 
with  the  rusty  weapons  of  medieval  England,  and 
any  confusing  economic  result  should  not  be  at- 
tributed to  our  courts.  No  other  result  is  to  be 
hoped  for  while  legislators,  instead  of  giving  these 
great  problems  intelligent,  constructive  considera- 
tion, weighing  the  economic  advantage  of  uniiied 
and  concentrated  production  against  the  social  ills 
which  may  arise  from  suppressing  great  numbers 
of  small  producers,  content  themselves  with  re- 
declaring  the  ancient  doctrines,  which,  if  they  were 
ever  adequate  to  cope  with  the  problem,  seem  quite 
insufficient  as  a  solution  of  the  economic  problems 
confronting  us  at  the  present  time. 

The  Sherman  Law,  if  construed  absolutely  and 
literally,  according  to  the  most  approved  Chinese 
method,  would  result  in  complete  economic  stag- 
nation. Interpreted  rationally  in  the  sense  intended 
by  its  originator,  as  declaratory  of  well-settled  rules 

203 


CKRTAINTY    AND    JUS7'ICE 

of  common  law,  it  will  not  annihilate  business  nor 
even  perhaps  very  seriously  impair  its  development. 
It  is,  however,  calculated  to  leave  the  whole  ques- 
tion of  "monopoly"  and  "combinations  in  restraint 
of  trade"  in  an  uncertain  condition  necessarily  re- 
sulting in  suits  and  prosecutions  in  which  courts  and 
juries  must  determine  in  every  case  whether  there 
was  restraint  of  trade  or  attempt  to  monopolize, 
and  all  this  with  results  of  very  doubtful  value 
to  the  community. 

The  cases  decided  since  those  here  discussed  have 
added  little  new  law  or  light.  In  each  case  the  Su- 
preme Court  is  in  effect  acting  as  a  jury,  passing 
upon  the  peculiar  facts  to  determine  whether 
restraint  of  competition  was  the  direct  result  or  a 
mere  incident,  a  by-product  of  circumstances  in- 
tended to  primarily  effect  other  results  than  mo- 
nopoly. The  real  difficulty  lies  in  the  fact  that 
the  nation  has  not  as  yet  thought  out  any  intelli- 
gent legislative  programme  which  will  adequately 
deal  with  new  and  largely  untried  economic  con- 
ditions. 


1204 


VIII 

PERVERSION  OF  PRECEDENT.    STARE  DECISIS. 
HISTORY  MISINTERPRETED 

"IX 7 E  have  seen  that  the  Doctrine  of  Stare  De- 
cisis may  maintain  rules  of  law  long  after 
the  grounds  on  which  they  were  based  have  passed 
away.  We  will  now  see  that  errors  as  to  historical 
situations  may  be  imbedded  in  the  law  so  firmly,  by 
reason  of  reverence  for  precedent,  that  they  are  even 
transplanted  over  seas  to  flourish  in  America.  An 
instance  of  this  is  found  in  the  judicial  develop- 
ment  (or  curtailment)   of  "riparian  rights." 

"Riparian  rights"  is  a  broad  term.  It  is  a  cate- 
gory dealing  with  an  almost  inexhaustible  variety 
of  situations  and  possibilities;  and  even  an  ele- 
mentary treatise  on  the  subject  would  re([uire 
many  pages.  Lest,  however,  the  reader  take  alarm 
at  this  apparently  sinister  preface,  I  hasten  to  add 
that  what  will  here  be  discussed  is  a  very  small  inci- 
dent in  that  vast  domain  of  law  treating  of  those 
peculiar  rights,  neither  wh(jlly  terrestrial,  nur  en- 
tirely aquatic,  which  might  almost  be  denominated 

205 


CERTAINTY   AND   JUSTICE 

amphibious.  Etymologically,  the  term  "riparian 
rights,"  should  refer  especially  to  rights  in  rivers, 
but  the  alliance  between  law  and  etymology,  never 
very  close,  has  of  late  years,  in  our  overworked  law 
courts,  and  at  the  hands  of  our  non-technical  legis- 
lators, been  severely  strained.  Consequently,  I 
need  scarcely  apologize  for  saying  that  the  class  of 
riparian  rights  here  treated  has  no  reference  to 
rivers,  as  such,  but  deals  entirely  with  the  fore- 
shore or  beach:  viz.,  that  portion  of  land  which, 
lying  between  the  low  and  high-water  mark  on  a 
tide-washed  shore,  becomes  alternately  land  and 
water.  The  term  "littoral"  is  sometimes  applied 
with  greater  accuracy  to  this  situation,  but  the  term 
"riparian"  seems  to  be  now  consecrated  by  legal 
usage,  and  I  do  not  sufficiently  possess  the  temper 
of  the  reformer  to  attempt  to  change  it. 

Riparian  questions  have  often  played  a  great  role 
in  our  jurisprudence.  The  rule  of  navigability  has 
been  extended  to  the  great  fresh  water  lakes,  new 
conditions  having  made  new  law.  The  Eng- 
lish common  law  test  of  navigability,  once  found 
inadequate,  has  been  repudiated,  although  it  had 
been  sanctioned  by  a  decision  of  the  Supreme 
Court.i 

The  great  rivers,  forming  highways  for  com- 
merce betw^een  our  States,  have  often  been  the  sub- 

^The  Genesee  Chief  (1851),  12  How.,  443. 
206 


PERVERSION    OF    PRECEDENT 

ject  of  jealous  controversy  between  the  States  whose 
territory  they  wash.  The  Supreme  Court  of  the 
United  States  in  the  case  of  Kansas  v.  Colorado  * 
has  said  that  in  deahng  with  these  questions,  it  sat 
rather  as  an  international  tribunal  than  as  a  merely 
domestic  one,  dispensing  international  rather  than 
common  law,  and  unfettered  by  the  ordinary  tech- 
nicalities of  municipal  law.  Later,  at  a  further 
stage  of  the  same  important  litigation,  in  answer 
to  the  claim  of  the  Attorney-General  that  the  United 
States  has  an  inherent  power  to  regulate  questions 
of  irrigation,  the  court  made  the  timely  reply  that 
the  government  of  the  United  States  was  still  one  of 
enumerated  powers  only,  possessing  no  inherent 
sovereignty;  that  the  proposition  advanced  by  the 
representative  of  the  United  States  government  that 
there  are  legislative  powers  which  belong  to  the 
nation  although  not  expressed  in  the  constitutional 
grant  of  powers,  was  in  direct  conflict  with  the 
constitutional  principle  that  this  is  a  government 
of  enumerated  powers;  and  the  proofs  that  this 
is  such  a  government  clearly  appear  frjom  the 
Constitution,  even  independently  of  the  amend- 
ments, for  otherwise,  an  instrument  granting  cer- 
tain specified  things  would  by  construction  be 
made  operative  to  grant  other  and  distinct 
things. 

•  (1902^)  185  U.  S.,  125,  at  146. 
207 


CERTAINTY   AND   JUSTICE 

"With  e(|ual  dctcrmiiialiDn  the  framcrs  intended 
that  no  such  assumption  should  ever  find  justifica- 
tion in  the  organic  act."  * 

Thus  has  the  mere  question  of  riparian  rights 
called  forth  from  our  supreme  tribunal  emphatic 
repudiation  of  the  doctrine  that  the  federal  govern- 
ment may  have  powers  outside  of  and  beyond  the 
scope  of  the  Constitution. 

Again,  there  are  other  phases  of  the  law  of 
riparian  rights  which  have  involved  the  broadest 
questions  of  constitutional  law.  How  far  such 
rights  may  constitute  property,  and  how  far  such 
property  may  be  taken  without  compensation,  have 
formed  the  subject  of  notable  State  and  federal 
adjudications. 

The  question  directly  treated  in  this  chapter, 
although  apparently  a  simple  one,  has  been  in  dis- 
pute for  many  years.  It  may  be  stated  thus:  has 
the  owner  of  land  abutting  upon  the  sea,  or  an  arm 
of  the  sea,  in  which  the  tide  ebbs  and  flows,  the 
right  to  construct,  for  his  own  use,  a  dock  giving 
him  access  to  the  navigable  portion  of  the  stream? 
It  must,  indeed,  seem  strange  to  those  not  versed 
in  the  judicial  literature  of  the  subject  that  this 
question,  until  a  very  short  time  ago,  was  still  un- 
settled in  New   York  State.     It  has  long  been  a 

^Kansas  v.  Colorado   (1907),  206  U.  S.,  46,  at  90. 
208 


PERVERSION    OF    PRECEDENT 

bone  of  contention  in  many  other  States  also,  and 
many  decisions  involving  the  question  have  aj)- 
peared  to  be  conflicting  and  confusing.  The  un- 
settled condition  of  the  law  upon  the  subject  has 
led  to  bitter  controversies  in  many  sea-shore  com- 
munities for  several  generations  past,  yet  it  was 
only  finally  in  March,  1907,  that  the  Court  of  Ap- 
peals of  this  State  definitely  established  as  a  rule  of 
property  the  proposition  that  the 

"riparian  owner  whose  land  is  bounded  by  navigable 
waters  has  the  right  of  access  thereto  from  the  front 
of  his  lot,  and  such  right  includes  the  construction 
of  a  pier  on  the  land  under  water,  beyond  high-water 
mark,  for  his  own  use  or  for  the  use  of  the  public, 
subject  to  such  general  rules  and  regulations  as 
Congress  or  the  State  Legislature  may  prescribe 
for  the  protection  of  the  rights  of  the  public."  ' 

The  fact  that  the  decision  was  reached  by  a  di- 
vided court,  three  of  the  seven  judges  dissenting, 
can  but  add  interest  to  the  question  and  illustrate 
the  uncertain  state  of  legal  opinion  upon  the 
subject. 

The  history  of  the  controversy  goes  back  to  a 
remote  time.  It  is  apparently  one  of  the  most 
ancient  in  English  law.  A  short  sketch  of  it  may 
not  be  uninteresting  as  indicating  how  slavishly  in 

Toom  of  Brookhaven  v.  Smith  (1907),  '88  N.  Y.,  74 
(Headnote  i). 

209 


CERTAINTY   AND   JUSTICE 

some  respects  our  law  has  followed  ancient  prece- 
dents originating  at  a  time  when  social  and  political 
conditions  were  far  different  from  our  own;  and 
with  what  difficulty  we  are  able  to  make  new  de- 
partures, more  consistent  with  the  needs  of  modern 
society. 

In  England,  rights  in  the  foreshore  have  been 
a  subject  of  legal  contention  almost  since  the  Nor- 
man Conquest.  Prior  to  that  momentous  event,  a 
riparian  owner  under  the  Saxon  law  apparently 
held  his  land  undisturbed  and  unfettered  down  to 
the  low-water  mark.  The  claim  of  the  Crown  to 
the  jus  privatum,  or  private  ownership  in  the 
foreshore,  as  opposed  to  the  jus  publicum,  or  right 
of  the  King  as  a  mere  trustee  for  the  public, 
which  was  always  recognized,  does  not  appear 
to  have  been  developed  prior  to  the  sixteenth 
century. 

Crown  prerogative  and  royal  property  formed 
one  of  the  elements  of  the  policy  of  Tudor  and 
Stuart  kings.  Unoccupied  land,  fishing  rights, 
wrecking  rights  and  the  soil  of  the  foreshore  fell 
within  the  range  of  their  covetousness,  and  able 
Crown  lawyers  were  soon  found,  ambitious  and  in- 
genious enough  to  devise  theories  and  fictions  by 
which  the  King  could  lay  claim  to  the  land  between 
the  low  and  high-water  mark ;  but  it  remained  for 
the  judges  of  Charles  I  finally  and  definitely  to  de- 

210 


PERVERSION    OF    PRECEDENT 

clare  as  law  the  theory  that  the  King  alone  owned 
the  foreshore. 

The  study  of  the  history  of  legal  institutions  ha3 
been  said  to  tend  to  make  one  a  legal  skeptic.  The 
history  of  the  English  law  is  admirably  illustrative 
of  the  development  of  legal  theories  and  their 
erection  into  principles  or  rules  which  come  to  be 
clothed  with  an  almost  sacred  character,  yet  whose 
origin  upon  examination  is  sometimes  found  to  be 
based  upon  a  misconception  of  a  historic  situation. 
Principles  of  property,  or  family  law,  whose  sup- 
posed antiquity  leads  to  their  being  treated  as  ele- 
mentary, often  prove  to  be  of  comparatively  recent 
origin  and  to  reflect  radical  changes  in  the  social 
and  economic  balance  or  structure  of  society.  The 
doctrine  of  the  English  law  for  more  than  two  cen- 
turies has  been  that  the  King  was  presumed  to  own 
the  foreshore,  and  this  presumption  could  not  be 
rebutted  save  by  the  exhibition  of  an  actual  Crown 
grant  to  the  claimant  or  his  predecessor  in  interest. 
This  doctrine,  termed  the  "prima  facie"  doctrine,  is 
stated  in  Blackstone  and  in  the  usual  standard  text- 
writers  in  England  and  America  as  a  settled  propo- 
sition historically  and  legally  sound.  That  this 
was  historically  false  and  that  the  doctrine  had  its 
origin  in  the  usurpation  and  greed  of  the  Stuart 
kings  and  in  the  subservient  ingenuity  of  the 
Crown  lawyers,  has  been  left  to  modern  scholar- 

2n 


CERTAINTY   AND   JUSTICE 

ship  to  demonstrate.  The  discovery  and  publica- 
tion of  old  grants  and  court  rccc^rds  have  thrown 
new  light  upon  the  subject,  and  instructive  refer- 
ence to  them  may  be  found  in  the  scholarly  and 
erudite  work  of  Mr.  Moore  on  the  history  of  the 
law  of  the  foreshore  and  seashore.^ 

Moore  appears  to  have  successfully  demonstrated 
that  prior  to  the  Norman  Conquest  the  Saxon  lands 
were  in  fact,  if  not  in  name,  manors,  and  that  the 
riparian  proprietors  owned  either  to  the  thread  of 
the  stream  or  to  the  low-water  mark,  as  the  case 
might  be.  After  the  Conquest,  the  large  Saxon 
landholders  were  not  disturbed,  and  their  grants 
were  in  large  part  either  confirmed  or  their  sub- 
stance incorporated  into  such  new  grants  as  were 
made.  There  is  no  evidence  that  the  Norman  or 
Angevin  kings  made  any  claim  to  the  foreshore 
except  when  they  themselves  were  lords  of  a  par- 
ticular manor.     Mr.  Moore  says :  -  , 

"Instead  of  it  being  true  that  the  Crown  retained 
the  foreshore  when  granting  out  its  dominions,  it  is 
more  probably  true  that  the  Crown  did  actually 
grant  it  out  by  its  original  grants  of  almost  every 
manor  in  the  kingdom,  and  consequently  that  the 
theory  of  the  prima  facie  title  is  one  on  which  little 
reliance  can  be  placed." 

*  Moore,  History  and  Law  of  the  Foreshore  and  Seashore. 
"Moore,  supra,  3d  Ed.,  page  29. 
212 


PERVERSION    OF    PRECEDENT 

Evidently  that  quaint  and  charming-  old  writer, 
Bracton,  did  not  recognize  this  prima  facie  theory 
as  part  of  the  English  law  in  his  day,  for  in  his 
Institutes  he  leaves  out  that  portion  of  Justinian's 
work  which  claims  for  the  Imperial  power  the  right 
to  the  foreshore. 

The  theory  of  the  kingly  ownership  of  the  fore- 
shore was  invented  by  an  ingenious  Crown  lawyer, 
one  Thomas  Digges,  in  the  reign  of  Elizabeth.  His 
claim  was  that  the  foreshore  belonged  to  the  Crown, 
not  as  other  royal  property,  but  as  part  of  the  royal 
prerogative,  and  he  supported  it  in  a  learned  thesis 
on  the  subject,  based  upon  an  assumption  of  a  state 
of  facts  of  which  there  is  no  proof,  and  the  re- 
verse of  which  almost  certainly  existed.  Before 
the  reign  of  Queen  Elizabetli  the  true  presumption 
of  fact  with  regard  to  the  ownership  of  the  fore- 
shore should  have  been  the  exact  reverse,  namely, 
that  it  was  in  the  riparian  owner  rather  than  in 
the  Crown.  It  appears  that  during  the  reigns  of 
Elizabeth  and  of  James  I,  in  a  number  of  cases, 
the  Crown  claim  to  foreshore  ownership  was  made 
by  astute  lawyers,  filled  with  zeal  to  enlarge  the 
royal  jurisdiction;  but  all  these  cases  seem  to  have 
been  unsuccessful  until  the  famous  case  of  At- 
torney-General  V.    Philpot,  ^    in    1628.    which,    we 

*  Attorney-General    v.    Philpot     (1628),    reported    only    in 
Moore,  supra,  page  262  et  seq. 

213 


CERTAINTY    AND   JUSTICE 

may  say  in  passing,  is  mentioned  in  the  dissenting 
opinion  in  the  Brookhavcn  case  as  the  leading 
English  case  establishing  that  doctrine.  That  case 
does  not  appear  to  be  reported,  but  Mr.  Moore  has 
found  the  manuscript  record,  and  gives  it  in  cx- 
tcnso  in  his  exhaustive  work.  It  is  extraordinary 
that  it  should  be  the  foundation  of  a  rule  of  prop- 
erty law,  which  until  1907  was  the  law  in  the  State 
of  New  York,  when  we  reflect  that  the  case  was 
decided  by  judges,  some  of  whom  sat  in  the 
famous  Ship  Money  case,  and  upon  whom  history 
has  placed  a  heavy  load  of  obloquy.  The  decision 
was  apparently  procured,  as  the  Ship  Money  judg- 
ment had  been,  by  the  personal  pressure  of  Charles 
I  for  the  purpose  of  obtaining  for  the  Crown, 
properties  and  revenues  to  which  it  had  no  just 
title.     The  claim,  says  Mr.  Moore, 

"was  founded  in  untruth  and  injustice,  and  the 
too  great  insistence  upon  it  by  King  Charles  I  un- 
questionably was  one  of  the  causes  of  the  great 
Revolution." 

Sir  Thomas  Townsend,  writing  to  a  friend  as  to 
the  Phil  pot  case,  intimates  that  it  will  be  properly 
disposed  of  "when  some  of  the  barons  have  re- 
ceived directions  from  the  King."  The  case  itself 
seems  to  have  been  a  moot  case,  contrived  by  the 
Stuart  monarch  for  the  purpose  of  obtaining  a  de- 

214 


PERVERSION    OF    PRECEDENT 

cision  which  might  bring  him  needed  revenues.  The 
Crown  lawyers  raised  the  question  by  making  a 
lease  of  a  piece  of  foreshore  to  one  Cornelius 
Vanderbilt,  with  a  view  to  establishing  legal  title 
by  an  action.  It  appears  an  odd  coincidence  that 
the  Court  of  Appeals  two  centuries  later  in  the  case 
of  another  Vanderbilt, '  should  have  declared  as 
New  York  law,  the  proposition  advanced  by  an 
earlier  Vanderbilt  on  behalf  of  Charles  I  in  the 
Phil  pot  case. 

That  a  decision  rendered  under  such  circum- 
stances should  have  stood  as  law  in  the  United 
States  for  more  than  a  century,  is  a  strong  com- 
mentary upon  the  conservatism  of  our  judges,  and 
perhaps,  incidentally,  upon  their  lack  of  knowledge 
of  or  indifference  to  history,  at  least  as  found  out- 
side of  the  reports  of  the  law  courts. 

The  "Grand  Remonstrance"  of  1641  is  almost  as 
noteworthy  a  landmark  in  the  history  of  English 
liberty  and  constitutional  law  as  the  Great  Charter 
itself,  yet  how  many  judges  who  have  learnedly 
considered  these  questions  have  had  in  mind  the 
Twenty-sixth  Article  of  that  memorable  document, 
charging  the  King  with  "taking  away  of  men's 
rights  under  color  of  the  King's  title  to  land  be- 
tween high  and  low-water  mark?" 

After  the  downfall  of  the  Stuart  tyranny  the 
^People  V.  Vanderbilt  (1863),  26  N.  Y.,  287. 
215 


CERTAINTY   AND   JUSTICE 

claim  seems  to  have  been  abandoned,  or  at  least  not 
pressed  for  many  years,  and  the  jud^rncnt  in  the 
Philpot  case  itself  was  apparently  never  executed, 
owing  doubtless  to  the  advent  of  the  Revolution. 
There  were,  as  there  had  been  before,  numerous 
cases  relating  to  interference  with  the  jus  publicum, 
but  we  must  wait  many  years  before  we  find  an- 
other precedent  for  the  Stuart  doctrine  of  jus  pri- 
vatum. It  has  always  been  admitted  that  the  jus 
publicum  was  inalienable,  and  in  examining  the 
early  cases  care  must  be  taken  to  distinguish  be- 
tween the  two. 

The  theory  of  the  Crown  lawyers  was,  that  the 
King  in  his  capacity  as  representative  of  the  whole 
realm  was  charged  with  the  duty  of  safeguarding 
the  right  of  the  public  to  navigate  tidal  waters  or 
to  use  the  foreshore  for  fishing  purposes,  etc.,  but 
that  in  addition  to  this  merely  public  function  he 
possessed  in  his  own  right,  as  the  general  residuary 
owner  of  all  the  soil  in  England,  the  jus  privatum, 
or  title  to  the  soil  of  the  foreshore,  which  conferred 
upon  him  the  right  either  to  alienate  or  to  use  this 
property  in  any  way  not  incompatible  with  the  jus 
puhliciim.  The  difference  between  the  two  is 
clearly  and  adequately  instanced  in  the  next  case 
which  we  find  adopting  the  doctrine  of  the  Philpot 
case.  This  case  is  the  Attorney-General  v.  Rich- 
ards, ^  decided  in  1795.     The  Crown  had  proceeded 

*2  Anstnither  603. 
216 


PERVERSION    OF    PRECEDENT 

by  information  to  obtain  a  decree  abating  a  dock 
or  quay  erected  upon  the  foreshore  of  Portsmouth 
Harbor  by  the  riparian  owner.  The  action  seems 
to  have  proceeded  upon  the  double  ground,  first 
that  the  structure  was  a  nuisance,  and  therefore 
obnoxious  to  the  jus  publicum,  and  second,  that  it 
was  a  purpresture,  that  is  to  say,  an  erection  or  en- 
closure on  the  King's  soil,  and  hence  summarily 
abatable  as  such.  The  defendant,  in  answer  to  the 
first  point,  claimed  that  he  should  have  had  a  trial 
by  jury,  and,  as  to  the  second,  endeavored  to  show 
evidence  of  a  grant  of  the  foreshore  and  ancient 
usage.  The  court  apparently  thought  the  answer 
to  the  first  question  adequate,  but  granted  a  decree 
in  favor  of  the  Crown  on  the  ground  that  "the  soil 
is  the  property  of  the  Crown."  The  court,  never- 
theless, indicates  some  little  squcamishncss  as  to  fol- 
lowing the  Philpot  case,  for  it  says :  * 

"It  is  objected  that  this  case  was  in  the  time  of 
CharlesI ;  but  it  must  be  remembered  that  Lord  Hale 
determined  some  of  them,  and  approved  the  rest." 

It  does  not  appear  to  have  Ijecn  noted  by  our 
courts  that  the  Richards  case  was  later  than  our 
adoption  of  the  common  law,  and  that  at  the  time 
when  the  common  law  became  a  part  of  the  law  of 
the  State  of  New  York,  the  famous  (or  infamous) 

'At  page  6 1 6. 
217 


CERTAINTY   AND   JUSTICE 

Thilpot  case  was  the  only  authority  for  the  doc- 
trine that  the  erection  of  a  pier  on  the  foreshore 
by  a  riparian  owner  was  per  sc  abatable  as  a  piir- 
presture. 

Johtson  7'.  Barret '  is  also  generally  cited  as  up- 
holding the  prerogative  doctrine,  but  the  report  is 
incomplete  and  the  subsequent  history  of  the  dis- 
pute proves  that  the  obstruction  made  navigation 
dangerous  "to  ships  in  the  ebb  tyde." 

The  English  law  itself  has  been  somewhat  modi- 
fied of  late  years,  and  now  a  riparian  owner  may 
not  be  cut  off  from  his  access  to  the  water.  ^ 

The  case  of  Parmeter  v.  Gibbs  ^  followed  At- 
torney-General V.  Richards,  and  simply  maintained 
the  prima  facie  doctrine  as  law  in  England.  Sir 
Matthew  Hale,  who  wrote  his  famous  treatise  on 
the  subject  in  1786,  and  who  has  been  cited  as 
the  most  respectable  authority  for  the  proposition, 
does  not  seem  to  have  himself  believed  that  the 
Crown  historically  was  the  owner  of  the  foreshore, 
but  merely  that  there  was  a  presumption  of  law  to 
that  effect  in  the  absence  of  contrary  proof. 

It  is  impossible  here  to  trace  the  doctrine  of  the 
jus  privatum  in  its  various  ramifications  through- 

*  (1647)  3.  Aleyn  K.  B.  Reports.  10. 

'  Bucclcuch  V.  Metropolitan  Board  of  Works  (1872)  L.  R.  5 
H.  L.  418;  Lyon  v.  Fishmongers  Co.  (1876)  L.  R.  i  App. 
Cas.  662. 

*  (1813)   10  Price,  412. 

218 


PERVERSION    OF    PRECEDENT 

out  the  United  States.  We  will  confine  ourselves  to 
a  brief  synopsis  of  its  history  and  development  in 
the  State  of  New  York  and  its  final  burial  by  the 
Court  of  Appeals  in  the  Brookhavcn  case,  after 
two  hundred  years  of  noxious  vitality. 

Before  adverting  to  the  New  York  cases,  how- 
ever, there  are  three  important  decisions  of  the  Su- 
preme Court  of  the  United  States  involving  the  doc- 
trine. They  are  in  the  order  of  time  as  follows: 
Yates  V.  Mihvaiikcc ;  ^  Shivcly  v.  Bowlby; '  Scran- 
ton  V.  IV heeler} 

It  is  needless  to  consider  here  how  far  these  cases 
are  reconcilable.  Sufiice  it  to  say  that  the  advocates 
of  the  doctrine  that  a  riparian  owner  has  no  wharf- 
age privilege,  claim  that  the  expression  to  the  con- 
trary in  Yates  v.  Mihcaukec  is  a  mere  dictum. 
That  oft-quoted  expression  was  written  by  Mr.  Jus- 
tice Miller  and  is  as  follows :  * 

"Whether  the  title  of  the  owner  of  such  a  lot  ex- 
tends beyond  the  dry  land  or  not,^  he  is  certainly 
entitled  to  the  rights  of  a  riparian  proprietor  whose 
land  is  bounded  by  a  navigable  stream ;  and  among 
those  rights  are  access  to  the  navigable  part  of  the 
river,  from  the  front  of  his  lot,  the  right  to  make 

'  (1870)  10  Wall.  497- 
'(1894)   152  U.  S.  I. 

•  (igoo)  179  U.  S.  14T. 

*  Page  504. 

'The  italics  are  the  writer's. 

219 


CERTAINTY    AND   JUSTICE 

a  landing,  wharf  or  pier  ff)r  his  own  use  or  for  the 
use  of  the  piihhc,  subject  to  such  general  rules  and 
regulations  as  the  legislature  may  see  proper  to  im- 
pose for  the  protection  of  the  rights  of  the  public, 
whatever  those  may  be  *  *  ♦.  This  riparian 
right  is  property,  and  is  valuable,  and,  though  it 
must  be  enjoyed  in  due  subjection  to  the  rights  of 
the  public,  it  cannot  be  arbitrarily  or  capriciously 
destroyed  or  impaired.  It  is  a  right  of  which,  when 
once  vested,  the  owner  can  only  be  deprived  in  ac- 
cordance with  established  law,  and,  if  necessary 
that  it  be  taken  for  the  public  good,  upon  due  com- 
pensation." 

The  disclaimer  by  the  court  of  the  relevancy  of 
the  question  whether  the  riparian  owner  had  title  to 
the  foreshore  is  most  significant,  since,  had  the 
court  held  the  English  view  of  jus  privatum,  the 
dock,  if  the  foreshore  was  not  in  the  riparian 
owner,  would  have  been  an  erection  upon  the  soil 
of  the  King  (or  his  successor,  the  grantee)  and 
hence  summarily  abatable  as  a  purpresture. 

It  has  been  claimed  in  the  Brookhavcn  case  that 
this  expression  of  the  court  in  the  Yates  case  has 
been  the  origin  of  nearly  all  the  dicta  in  the  New 
York  reports  to  the  same  effect.  However  that 
may  be,  the  doctrine  has  itself  now  finally  been 
adopted  in  New  York. 

In  Shively  v.  Bowlby,  a  characteristically  ex- 
haustive and  learned  opinion  was  written  by  Mr. 

220 


PERVERSION    OF    PRECEDENT 

Justice  Gray.  He  comes  to  the  conclusion,  after 
citing  copiously  from  Lord  Hale  and  some  of  the 
English  decisions,  that 

"by  the  law  of  England,  also,  every  building  or 
wharf  erected  without  license,  below  high-water 
mark,  where  the  soil  is  the  King's,  is  a  purpresture, 
and  may,  at  the  suit  of  the  King,  either  be  demol- 
ished, or  be  seized  and  rented  for  his  benefit,  if  it  is 
not  a  nuisance  to  navigation."  * 

We  thus  have  here  a  most  unqualified  statement 
of  the  Stuart  doctrine  of  jus  privatum.  The  learned 
Justice  further  reviews  the  law  in  the  different 
States  and  finds  considerable  diversity  upon  the 
question  as  to  the  rights  of  the  riparian  owner  in  the 
land  below  high-water  mark.  The  real  question, 
however,  involved  in  the  case  was.  whether  grants 
made  by  the  territorial  government  while  Oregon 
was  a  territory  passed  title  to  the  foreshore,  so  that 
the  government  of  the  State  was  precluded  frt)m 
claiming  it  after  the  territory  was  admitted.  In 
final  analysis,  this  case  merely  declares  the  law  of 
Oregon  to  be  that  of  the  pr'wia  facie  doctrine  as  to 
the  ownership  in  fee  of  the  beach. 

In  the  later  case  of  Scranton  r.  W'hcdcr,  the 
question  involved  was  whether  the  L'niled  States 
government,  for  the  purpose  of  improving  naviga- 

*At  page  13. 
221 


CKRTAINl  Y    AND   JUSTICE 

tion,  might  erect  a  pier  which  would  interfere  with 
the  access  of  the  riparian  owner  to  the  navigable 
portion  of  the  stream.  The  authorities  were  re- 
viewed fully,  and  it  was  held  that,  although  a 
riparian  owner  has  a  right  of  access,  his  access  must 
be  held  in  subordination  to  the  right  of  the  govern- 
ment to  improve  navigation.  The  court  so  phrased 
their  view  of  the  law  :  ^ 

"If  the  riparian  owner  cannot  enjoy  access  to 
navigability  because  of  the  improvement  of  naviga- 
tion by  the  construction,  away  from  the  shore  line, 
of  works  in  a  public  navigable  river  or  water,  and 
if  such  right  of  access  ceases  alone  for  that  reason 
to  be  of  value,  there  is  not,  within  the  meaning  of 
the  Constitution,  a  taking  of  private  property  for 
public  use,  but  only  a  consequential  injury  to  a  right 
which  must  be  enjoyed,  as  was  said  in  the  Yates 
case,  in  due  subjection  to  the  rights  of  the  pub- 
lic— an  injury  resulting  incidentally  from  the  exer- 
cise of  a  governmental  power  for  the  benefit  of  the 
general  public,  and  from  which  no  duty  arises  to 
make  or  secure  compensation  to  the  riparian  owner. 
The  riparian  owner  acquired  the  right  of  access 
to  navigability  subject  to  the  contingency  that 
such  right  might  become  valueless  in  conse- 
quence of  the  erection  under  competent  authority 
of  structures  on  the  submerged  lands  in  front  of 
his  property  for  the  purpose  of  improving  naviga- 
tion." 

'  At  page  164. 
222 


PERVERSION    OF    PRECEDENT 

This  statement  of  the  law  is  a  declaration  that  the 
riparian  owner  holds  his  right  subject  to  the  jus 
publicum,  and  no  question  of  the  ownership  by  the 
Crown  or  by  the  State  of  the  foreshore  was  neces- 
sarily involved ;  Justices  Shiras,  Gray  and  Peckham, 
however,  dissented,  holding  that  if  by  the  law  of 
the  State  in  which  the  land  is  situated,  the  right  of 
access  is  one  of  the  incidents  of  abutting  land,  such 
right  is  property,  and  cannot  be  taken  away  without 
compensation.  The  difference,  therefore,  between 
the  members  of  the  court  appears  to  be,  not  as  to 
the  existence  of  the  upland  owner's  property  right 
of  access,  but  whether  the  right  of  the  government 
to  have  the  navigation  improved  is  altogether  para- 
mount, or  whether  it  could  only  be  exercised  after 
condemnation  of  such  right.  Thus  aside  from  the 
views  expressed  by  the  court  in  Shizely  v.  Boivlby 
as  to  the  English  common  law,  and  its  having  be- 
come a  part  of  the  law  of  Oregon  by  adoption,  there 
is  nothing  in  any  of  these  decisions  holding  that  the 
ancient  royal  jus  privatum  and  doctrine  of  purpres- 
ture  became  part  of  the  common  law  usually  pre- 
vailing in  the  United  States. 

We  are  now  brought  to  consider  the  New  York 
law  and  the  antecedents  of  the  Brookhaven  case. 
They  are  referred  to  in  great  detail  in  that  case  and 
it  would  be  wearisome  iteration  to  treat  them  here 
at  length.    Suffice  it  to  say  that  in  the  year  1892,  the 

223 


CERTAINTY    AND    JUSTICE 

case  of  Gould  v.  Hudson  River  Railroad  Co., '  hold- 
mf^  a  rij)arian  owner  without  remedy  aj^ainst  a 
railroad  corporation  which  cut  off  his  access  to  the 
water,  was  reversed,  and  the  right  of  access  upon 
the  part  of  an  upland  owner  held  to  be  a  property 
right  as  against  a  private  corporation  whose  erec- 
tion of  a  railroad  took  it  away  or  interfered  with  its 
enjoyment.  Throughout  Riimscy  v.  R.  R.  Co? 
and  later  cases  the  statement  appears  in  almost 
similar  language  to  that  used  in  the  Yates  case,  to 
the  effect  that  the  right  of  access  of  the  riparian 
owner  includes  the  right  to  make  a  landing,  wharf, 
or  pier  for  his  own  use.  That  precise  question, 
however,  was  not  necessarily  involved  in  any 
of  the  cases.  It  appears  clearly,  nevertheless 
that  the  right  of  access  was  a  property  right, 
although  it  was  held  in  the  case  of  Sage  v.  The 
Mayor^  that  such  right  must  be  held  in  subordina- 
tion to  the  right  of  the  municipality  to  improve  the 
navigation  of  the  river.  This  is  in  line  with  the  de- 
cision of  the  Supreme  Court  of  the  United  States 
in  Scranton  v.  Wheeler. 

It  was  decided,  upon  the  other  hand,  in  the  Matter 
ter  of  the  City  of  New  Vork,^  that  the  erection  of 
the  Speedway  along  the  Harlem  River,  by  which 

'  (1852)  6  N.  Y.  522. 
'(1892)  133  N.  Y.  79- 
'(1897)  154  N.  Y.  61. 
*(i90i)  168  N.  Y.  134- 

224 


PERVERSION    OF    PRECEDENT 

abutting  owners  were  cut  off  from  access  to  the 
river,  constituted  a  taking-  of  property  for  which 
the  city  was  Hable,  thus  emphasizing  the  fact  that 
the  riparian  owner  had  a  property  right  in  the 
foreshore,  subject  only  to  the  jus  publicum;  as 
otherwise,  the  city  could  have  used  it  as  it  wished. 
The  jus  privatum  was  thus  not  recognized  as  law. 
This  result  seemed  fairly  dcducible  from  the 
other  decisions,  as  no  amount  of  legal  ingenu- 
ity could  torture  the  erection  of  that  delightful 
pleasure-ground  into  an  improvement  of  navi- 
gation. 

None  of  these  recent  cases,  however,  really  con- 
sidered the  distinction  between  the  jus  privatum  and 
the  jus  publicum.  In  the  People  v.  Vandcrbilt, 
the  Court  of  Appeals,  possibly  unnecessarily,  but 
nevertheless  somewhat  positively,  committed  itself 
to  the  purpresture  doctrine.  The  defendant  had 
constructed  a  solid  pier  filled  with  stone  beyond  the 
New  York  harbor  line  and  an  action  was  brought 
in  behalf  of  the  people  to  restrain  the  erection  of 
such  pier  and  to  compel  the  removal  of  the  part 
already  built.  It  would  seem  from  the  report  that 
the  decision  might  well  have  been  placed  upon  the 
ground  that  the  pier  was  an  obstruction  to  naviga- 
tion and,  as  such,  a  nuisance.  This  is  the  view  taken 
of  the  decision  by  the  court  in  the  Brookhavcn  case. 
The  court,  however,  in  the  Vandcrbilt  case  did  not 

225 


CERTAINTY   AND   JUSTICE 

ostensibly  rest  its  decision  upon  such  ground.   They 
say:  * 

"The  crib  sank  by  the  defendant  and  the  pro- 
posed pier  were  a  purpresture,  and  were,  per  se,  a 
pubHc  nuisance.  The  offer,  therefore,  of  the  de- 
fendant's counsel  to  prove  by  the  testimony  of  wit- 
nesses tJtat  tJie  crib  and  proposed  pier  were  not, 
and  would  not  be,  an  actual  nuisance,  and  would 
not  injuriously  interfere  unth  or  affect  the  naviga- 
tion of  the  river  or  bay,  was  properly  overruled." 

As  an  authority  on  this  proposition  is  cited  At- 
torney-General V.  Richards,  discussed  above.  I  am 
not  aware  of  any  other  cases  in  the  higher  courts  in 
this  State  standing  squarely  for  the  royal  prerog- 
ative doctrine. 

The  law  stood  in  this  situation  when  the  case  of 
Trustees  of  BrooJzhaven  v.  Smith  ^  reached  the  Ap- 
pellate Division  in  the  Second  Department.  It  ap- 
pears that  the  town  of  Brookhaven  was  seized  of 
certain  lands  under  water  under  ancient  royal  grants 
dating  back  to  1666.  Claiming  a  right  to  a  fee 
ownership  in  the  foreshore  under  these  grants,  the 
town  leased  such  foreshore  to  persons  other  than  the 
riparian  owners.  The  riparian  owners  had  built 
docks  upon  this  leased  land,  and  the  town  lessees 
consequently  sued  them  in  an  action  for  trespass. 

'  26  N.  Y.,  at  page  297. 
'  (1904)  98  App.  Div.  212. 

226 


PERVERSION    OF    PRECEDENT 

No  questions  of  navigation,  or  of  the  rights  of  the 
general  public,  were  involved.  It  was  necessary  to 
determine  whether  the  town  was  the  owner  of  the 
foreshore  under  such  old  grants,  and  if  so, 
whether  it  consequently  had  a  right  to  abate  as  a 
purpresture  the  dock  in  question.  The  Appellate 
Division  assumed  that  the  grant  of  the  lands  under 
water  conveyed  to  the  town  title  to  high-water 
mark,  and  that  the  grants  were  to  be  interpreted  in 
the  light  of  the  law  at  the  time  they  were  made. 
Under  such  law,  so  the  court  held,  the  king  was  the 
owner  of  the  foreshore  and  any  riparian  owner  who 
placed  anything  thereon  was  a  mere  trespasser. 

"By  the  law  of  England,"  says  the  court.'  "as 
it  existed  at  that  time,  every  building  or  wharf 
erected  without  license  below  high-water  mark, 
where  the  soil  belonged  to  the  King,  constituted  a 
purpresture  and  might,  at  the  suit  of  the  King,  be 
either  demolished,  or  be  seized  and  rented  for  his 
benefit,  if  it  did  not  constitute  a  nuisance  to  navi- 
gation, *  *  *  and  no  reason  suggests  itself, 
why  the  defendants  should  have  a  higher  right 
against  the  grantees  of  the  King  than  tlu-y  would 
have  had  against  the  sovereign  of  (Ireat  Britain  had 
he  continued  the  owner  of  the  soil." 

Consequent  upon  this  decision,  efforts  to  enforce 
supposed  town  rights  by  suniinarily  destroying  tiie 

'  At  page  217. 
227 


CERTAINTY   AND   JUSTICE 

wharves  of  the  abutting  owners  were  made  on  Long 
Island.  The  writer  was,  among  others,  a  victim  of 
the  ancient  Stuart  doctrine  of  purpresture  and  of  the 
vicious  but  ancient  legal  theory  of  the  jus  privatum 
devised  by  Mr.  Thomas  Digges,  sanctioned  by  the 
Ship  Money  judges,  the  final  manifestations  of 
which  took  the  form  of  ludicrous  antics  on  the  part 
of  petty  town  officers  intoxicated  by  the  recrudes- 
cent  exuberance  of  royal  prerogative.  This  zealous 
desire  to  conform  to  the  latest  utterances  of  the 
courts,  and  to  vindicate  the  kingly  dignities  inherited 
from  English  monarchs  vested  by  ancient  grant  in 
municipal  corporations,  added  greatly  to  the  interest 
in  the  result  of  the  appeal  to  the  Court  of  Appeals  in 
the  Brookhaven  case. 

Prior  to  that  decision,  however,  the  Appellate 
Division  in  the  Second  Department  decided  the  case 
of  Coudert  v.  Under  hill}  In  that  case  the  ruling 
in  the  Brookhaven  case  was  affirmed,  and  the 
statement  in  a  then  recent  case  in  the  Court  of 
Appeals  ^  to  the  effect  that  the  right  of  access  in- 
cluded the  right  to  make  a  landing,  wharf  or  pier, 
was  distinguished  on  the  ground  that,  while  this 
might  be  true  where  the  foreshore  was  ozuned  by 
the  State,  such  was  not  the  law  in  the  case  of  a 

'  (1905)  107  App.  Div.  335. 

'Thousand  Islands  Steamboat  Co.  v.  Visger   (1904)   179  N. 
Y.  206. 

228 


PERVERSION    OF    PRECEDENT 

municipal  corporation.  The  right  to  erect  a  dock, 
it  was  said, 

"has  no  reference  to  a  situation  where  the  fee  of 
the  soil  between  high  and  low-water  mark  is  in  an 
individual  or  corporation."  ^ 

As  the  fee  of  the  soil,  whether  in  the  State  or  in  the 
municipal  corporation,  must  ultimately  have  been  de- 
rived (if  derived  at  all)  from  the  English  Crown, 
it  is  difficult  to  see  upon  what  ground  a  distinction 
could  be  made,  between  the  State  as  owner  and  a 
municipal  corporation  as  its  grantee.  However,  this 
point  although  discussed  upon  the  argument,  was 
not  adverted  to  in  the  Brookhavcn  case  and  we  may 
assume  that  the  Court  of  Appeals  found  that  even 
its  novelty  did  not  require  any  mention.  It  is  in- 
teresting to  note  as  a  commentary  on  the  possilile 
ramifications  of  the  ancient  legal  proposition,  the 
suggestion  by  an  appellate  court  that  the  ancient 
kingly  jus  privatum,  while  it  might  not  pass  to  an 
American  State,  could  pass  in  all  its  panoplied 
majesty  to  a  mere  municipal  corporation.  Such  a 
doctrine  was,  of  course,  inconsistent  with  the  de- 
cision of  the  Court  of  Appeals  in  Coxc  v.  State,  * 
holding  that  the  State  inherited  the  foreshore  in  a 
purely  governmental  capacity  and  could  not  grant 

'At  page  336;  the  italics  arc  the  writer's. 
•(1895)   144  N.  Y.  396. 

229 


CERTAINTY    AND   JUSTICE 

it  out  for  speculative  purposes — "a  sovereign,  not  a 
proprietary  right." 

In  the  Court  of  Appeals  the  argument  made  on 
behalf  of  the  town  was  that 

(i)  The  ancient  grant  to  the  town  of  Brook- 
haven  must  be  construed  in  the  light  of  the  law  as 
it  then  stood.  This  law  was  to  be  found  in  Attor- 
ney-General z'.  Philpot  and  some  of  the  other  cases 
heretofore  referred  to. 

(2)  The  rights  of  the  town  as  so  interpreted 
were  vested  rights  and  could  not  be  disturbed  with- 
out compensation. 

The  claim  of  the  town,  if  its  analysis  of  the  situa- 
tion was  well-founded,  led  to  a  grave  constitutional 
question.  The  Supreme  Court  of  the  United  States 
has  very  recently  held  that  a  State  court  cannot  by 
a  change  in  its  common  law  deprive  persons  of  the 
enjoyment  of  something  that  had  theretofore  been 
considered  property  or  a  necessary  incident 
thereto.  ^  Had  the  Court  of  Appeals  actually  de- 
clared not  to  be  a  property  right  something  which 
when  the  royal  grants  were  made  had  been  property, 
this  change  in  the  law  might  well  have  been 
claimed  to  impair  the  obligation  of  contract  and  to 
constitute  a  taking  without  due  process. 

It  might,  I  believe,  have  been  a  sufficient  answer 

^Muhlkcr  V.  Harlem  Railroad  Co.  (1905)  I97  U.  S.  544- 
230 


PERVERSION    OF    PRECEDENT 

to  the  town's  position  to  say  that  their  view  of  the 
English  law  was  not  sound.  Prior  to  the  adoption 
of  the  EngHsh  common  law  by  the  State  '  there  was. 
as  has  been  indicated,  no  valid  or  adequate  prece- 
dent to  the  effect  that  a  structure  erected  on  the 
foreshore  by  a  riparian  owner  in  order  to  give  him 
access  to  the  navigable  portion  of  the  water,  was,  in 
and  of  itself,  a  trespass  or  encroachment  on  the 
King's  soil.  The  whole  doctrine  of  purpresture 
might  well  have  been  regarded  as  merely  an  ingen- 
ious theory  of  overzealous  and  unscrupulous  Crown 
lawyers,  which,  at  least  in  1777,  had  not  become  a 
settled  part  of  the  common  law. 

The  Court  of  Appeals,  while  not  treating  the 
question  in  exactly  this  fashion,  reached  a  similar 
result,  and  quite  as  effectively  relegated  the  jus 
priz'afion  to  the  very  proper  category  of  legal 
antiquities. 

In  a  most  erudite  and  interesting  opinion,  Judge 
Gray  held  that  assuming  the  English  law  to  be  as 
claimed,  yet — 

"The  adoption  by  the  people  of  this  state  of  .such 
parts  of  the  common  law.  as  were  in  force  on  the 
20th  day  of  April,  1777.  does  not  compel  us  to  in- 
corporate into  our  .system  of  jurisprudence  prin- 
ciples which  are  inapplicable  to  our  circumstances 
and  which  are  inconsistent  with  our  notions  of  what 

'  1777. 
231 


CERTAINTY   AND   JUSTICT: 

a  just  consideration  of  those  circumstances  flcmands. 
*  *  *  'no  doctrine  is  better  settled  than  that 
such  portions  of  the  law  of  Enj^land,  as  are  not 
adapted  to  our  conditions,  form  no  part  of  the  law 
of  this  state.'  "  ^ 

"The  jus  privatum  of  the  crown,  by  which  the 
English  king  was  deemed  to  own  the  soil  of  the 
sea  and  of  navigable  rivers,  in  his  own  right,  rather 
than  as  a  sovereign  holding  it  in  trust  for  his  people, 
however  applicable  to  the  conditions  in  Great  Brit- 
ain, were  totally  inapplicable  to  the  situation  of  the 
colonists  of  this  country.  In  Gould  on  Waters,  the 
author  remarks,  as  to  this,  that  'there  is  no  evidence 
that  the  jus  privatmn  *  *  *  vvas  ever  asserted 
in  the  colony  as  the  right  of  the  Crown,  or  that  it 
has,  until  recently,  been  claimed  by  the  states;  but 
there  is,  on  the  contrary,  in  my  opinion,  the  strong- 
est evidence  that  this  right  has  been  abandoned  to 
the  proprietors  of  the  land  from  the  first  settlement 
of  the  province  and  exercised  by  them  to  the  pres- 
ent day,  so  as  to  have  become  a  common  right  and 
thus  the  common  law."  ^ 

Here  at  last  the  coup  dc  grace  has  been  given  to 
the  old  doctrine.  The  elaborate  structure  invented 
by  the  keen  but  time-serving  Digges,  adopted  by  the 
Stuart  kings,  sanctioned  by  subservient  judges  and 
finally  through  the  invincible  English  love  of  prece- 

'  Toivn  of  Brookhaven  v.  Smith  (1907)  18S  N.  Y.  74,  at  79. 
'At  page  80. 

232 


PERVERSION    OF    PRPXEDENT 

dent  become  part  of  the  common  law,  has  at  lenf^th 
died  in  the  year  1907  as  the  consequence  of  a  law- 
suit over  a  little  dock  on  a  Long  Island  shore. 

The  opinion  further  refers  to  the  fact  that  ri- 
parian owners  have  everywhere  made  their  right  of 
access  available  by  building  piers  or  wharves  "and 
have  done  so  without  interference  by  the  Stale 
where  superior  public  rights  have  not  been  ob- 
structed." 

"These  interests  must  be  very  large  and  if  we 
shall  hold  with  the  English  common-law  doctrine 
that  they  are  purprestures  or  unlawful  encroach- 
ments upon  the  proprietary  rights  of  the  state 
*  *  *  it  would  result  in  causing  a  very  grave 
loss." 

The  New  York  cases  are  fully  reviewed  and  it  is 
shown  that  succeeding  cases  had  completely  and 
admittedly  overruled  the  case  of  Gould  Z'.  Hudson 
River  R.  R.  Co.,  and  the  right  of  access  of  the 
riparian  owner  and  the  fact  that  this  right  consti- 
tuted property  had  been  frequently  and  emphatically 
recognized  and  repeatedly  said  to  include  the  right 
to  build  a  wharf. 

In  answer  to  the  suggestion  that  these  expres- 
sions in  the  cases  referred  to,  notably  the  Ruinscy 
case  and  Thousand  Islands  Steamboat  Co.  v.  Vis- 
ger,  were  mere  dicta,  the  court  said : ' 

'  At  page  83. 

233 


CERTAINTY   AND   JUSTICE 

"While  it  may  l)e  true  that  what  was  said,  as  to 
the  measure,  or  substance  of  the  riparian  owner's 
right  of  access  from  his  upland  to  the  navigable 
body  of  water  in  front  of  it,  was  not  essential  to 
the  decision  of  the  precise  issue,  it  was,  nevertheless, 
the  deliberate  and  careful  expression  of  an  opinion 
as  to  that  right  and  one  not  altogether  impertinent 
to  the  decision  of  the  particular  case.  As  establish- 
ing the  rule  of  law  in  this  state  upon  the  extent  of 
a  riparian  owner's  right,  the  decision  in  the  Rmnsey 
case  has  been  followed,  and  acted  upon,  by  the  Ap- 
pellate Division  of  the  Supreme  Court,  in  at  least 
three  of  the  judicial  departments." 

The  opinion  summarizes  the  whole  situation  in 
the  following  concise  expressions :  ^ 

"So  I  conclude  that  the  question  is  not,  what  was 
the  common-law  doctrine  concerning  a  riparian 
owner's  right  in  the  foreshore,  or  tideway ;  but  what 
that  right  has  been  construed  to  mean  by  the  courts 
of  this  state.  The  town  of  Brookhaven  acquired  its 
title  under  the  royal  grants;  but  it  holds  it  in  trust 
for  the  members  of  the  community  and,  if  we  admit 
that  the  plaintiff.  Post,  as  its  lessee,  took  exclusive 
rights  under  its  lease,  they  cannot  avail  to  abrogate, 
or  to  destroy,  a  right  which  appertained  to  a  ri- 
parian ownership,  to  make  available  the  easement,  or 
right  of  access,  by  the  construction  of  a  landing, 
pier  or  wharf. 

"For  these  reasons,  I  advise  that  the  judgment 

'At  page  87. 
234 


PERVERSION    OF    PRECEDENT 

below  be  reversed  and,  as  the  controversy  does  not 
depend  upon  the  facts,  that  the  complaint  be  dis- 
missed ;  with  costs  to  the  appellants  in  all  the  courts." 


The  old  doctrine,  however,  died  a  hard  death,  for 
we  find  an  elaborately  erudite  dissenting-  opinion 
written  by  Judge  Hiscock  and  concurred  in  by 
Judges  Vann  and  Werner.  Judge  Hiscock  takes 
the  view  that  at  the  time  the  grants  were  made,  the 
King  had,  by  English  law,  title  to  the  foreshore  and 
the  grants  were  in  the  nature  of  contracts  to  be  con- 
strued and  interpreted  in  the  light  of  the  law,  as  it 
prevailed  when  they  were  made.  Two  classes  of 
rights  existed  in  the  King,  the  jus  publicum  and 
the  jus  privatum.     The  latter 

"was  a  property  right  and  the  title  and  right  which 
he  (the  king)  enjoyed  in  his  capacity  he  could  by 
virtue  of  his  proprietary  interest  convey  to  a  pri- 
vate individual,  but  always  subject  to  the  rights  and 
privileges  of  the  people  at  large  comprehended 
within  the  definition  jus  publicum" «     *     *     * 

"An  unauthorized  obstruction,  injuring  the  jus 
publicum  by  impeding  or  in  any  manner  interfer- 
ing with  the  common  right  of  the  public  to  navigate 
and  use  the  waters  was  and  is  a  nuisance  and  to  be 
abated  as  such.  A  purpresture  relates,  on  the  con- 
trary, to  the  jus  privatum.  It  was  and  is  an  inva- 
sion of  the  right  of  property  in  the  soil  while  held 

'  At  page  90. 
235 


CERTAINTY   AND   JUSTICE 

by  the  king  or  the  people.     It  might  or  might  not 
also  be  a  nuisance."  ^ 

"Thus  we  find  that  all  of  the  expressions  in  these 
cases  tending  to  support  appellants'  proposition  are 
rather  by  way  of  illustration  and  amplification  of 
what  was  essentially  involved  than  otherwise,  and 
moreover  that  directly  or  indirectly  they  are  based 
upon  the  Yates  case  which,  upon  this  point,  can  no 
longer  be  regarded  as  authoritative."  - 

The  doctrine  of  the  Brookhavcn  case  has  been 
reaffirmed  and  distinguished  in  the  case  of  Barnes 
V.  Midland  Railroad  Terminal  Co.^  decided  No- 
vember lo,  1908.  The  owner  of  lands  upon  the 
Staten  Island  shore  had  constructed  a  pier  connect- 
ing his  uplands  with  the  sea,  but  in  addition,  he  had 
placed  under  the  pier  a  fence  or  barrier  apparently 
designed  for  the  purpose  of  obstructing  the  passage 
along  the  shore.  The  question  argued  in  the  case 
was  whether  the  riparian  owner's  rights  in  the  fore- 
shore were  so  exclusive  as  to  enable  him  to  erect  a 
barrier  which  prevented  the  public  walking  along 
the  beach.  The  court  took  the  view  that  while 
under  the  Brookhavcn  case,  the  owner  had  a  right 
to  erect  a  pier  which  might  incidentally  be  an  ob- 
struction to  pedestrians  on  the  foreshore,  neverthe- 
less, this  right  was  limited  to  the  necessities  of  the 

'  At  page  91. 
*  At  page  102. 

'85  N.  E.,  1093;  1^6  App.  Div.  435;  193  N.  Y.  378. 
236 


PERVERSION    OF    PRECEDENT 

situation,  and  that  in  the  case  at  bar,  the  harrier 
under  the  pier  was  unnecessary  f(;r  the  riparian 
owner's  purposes  of  access  and  was  an  interference 
with  the  rights  of  the  pubhc  to  pass  along  the  fore- 
shore. This  decision  does  not  seem  to  in  any  way 
conflict  with  or  encroach  upon  the  doctrine  of  the 
court  in  the  Brookhavcn  case.  There  are,  how- 
ever, some  remarks  which  may  be  taken  to  indi- 
cate that  the  death  struggles  of  the  ancient  jus 
privatum  are  not  quite  over.     The  court  says :  ' 

"The  same  reasons  which  underlie  the  decision 
in  the  Brookhavcn  case  as  to  the  rights  of  littoral 
and  riparian  owners  apjily  with  even  greater  force 
to  the  right  of  the  public  to  use  the  foieshore  upon 
the  margin  of  our  tide  waters  for  fishing,  bathing 
and  boating,  to  all  of  which  the  right  of  passage 
may  be  said  to  be  a  necessary  incident.  Except 
in  so  far  as  the  jus  privation  of  the  Crown  has  de- 
volved upon  littoral  and  riparian  owners,  that  right 
now  resides  in  the  people  in  their  sovereign  capacity. 
This  is  the  logical  result  of  our  decision  in  the 
Brookhavcn  case,  and  it  is  in  harmony  with  the 
development  of  our  history  and  the  spirit  of  our 
institutions." 

I  incline  to  believe  that  it  is  not  some  fragment 
of  the  discredited  and  dismembered  jus  privatum 
if  that  be  the  learned  judge's  meaning,  that  now 

'Per  Werner.  J.  (193  N.  Y.,  384). 
237 


CERTAINTY   AND   JUSTICE 

resides  in  the  ri<i;lit  usually  claimed  to  walk  along 
the  shore  and  to  pass  over  the  beach  between  high 
and  low-water  mark.  It  would  seem  if  a  right,  at 
all,  to  be  properly  included  in  the  jus  publicum 
and  appears  somewhat  analogous  to  the  right 
of  the  public  to  pass  in  the  boat  c;ver  the  fore- 
shore when  the  tide  permits  it.  In  order  to 
sustain  this  right,  it  is  not  necessary  to  invoke  the 
shade  of  the  dead  prerogative  doctrine,  for  as  the 
opinion  itself,  in  referring  to  the  Brookhaven  case, 
says: 

"the  jus  privatum  of  the  crown,  by  which  the  sov- 
ereign of  England  was  deemed  to  be  the  absolute 
owner  of  the  soil  of  the  sea  and  of  the  navigable 
rivers,  was  totally  inapplicable  to  the  conditions  of 
our  colonies  when  the  common  law  was  adopted  by 
them;  and  that  this  right,  from  the  first  settlement 
of  our  province,  seems  to  have  been  abandoned  to 
the  proprietors  of  the  upland  so  as  to  have  become 
a  common  right,  and  thus  the  common  law  of  the 
state." 

As  the  referee  found  that  the  riparian  owner  had 
a  grant  of  land  from  the  State,  which  grant  con- 
tained a  condition  that  neither  he  nor  his  successors 
should  erect  any  obstruction  of  any  kind  in  or  upon 
the  land  lying  between  the  lines  of  high  and  low- 
water  mark  as  they  now  exist,  the  case  might 
easily  have  been  made  to  turn  upon  the  terms  of  the 

238 


PERVERSION    OF    PRECEDENT 

grant.  The  court,  however,  seemed  to  be  clearly  of 
the  opinion  that  the  terms  of  the  grant  did  not  afTect 
the  riparian  rights,  but  that  the  right  to  build  a 
wharf  does  not  include  the  right  to  obstruct  the 
public  passage  unless  such  exclusion  be  necessitated 
by  the  nature  of  the  wharf  itself.  It  remains  to  be 
seen  whether  a  riparian  owner  would  be  allowed  to 
build  a  solid  pier  which  would  necessarily  prevent 
all  movement  along  the  shore.  We  can  only  say 
that  in  view  of  the  Brookhavcn  case  and  the  Mid- 
land Railroad  case,  this  problem  would  probably  be 
determined  by  reserving  as  a  question  of  fact,  the 
proposition  as  to  whether  that  particular  kind  of  a 
pier  was  suitable  and  necessary  to  the  premises  in 
question.  The  court  indicates  this  pretty  clearly  in 
the  following  apposite  language : 

"It  is  enough  to  say  that  either  as  littoral  owner 
or  by  virtue  of  its  letters  patent,  the  defendant  had 
the  right  to  construct  and  maintain  a  pier  that  was 
reasonably  adapted  to  the  purpose  for  which  it  was 
primarily  intended  and  that  was  to  provide  a  means 
of  passage  from  the  upland  to  the  sea.  To  the  ex- 
tent that  the  reasonable  exercise  of  this  right  neces- 
sarily interfered  with  the  right  of  the  public  to  pass 
along  the  foreshore  the  former  was  paramount  and 
the  latter  was  subordinate;  and  the  logical  corollary 
to  that  proposition  is  that,  just  in  so  far  as  the  at- 
tempted exercise  of  the  littoral  or  riparian  right 
passed  the  prescribed  bounds  of  necessity  and  rea- 

239 


CKRTAINTY   AND   JUSTICE 

son,  tlie  conditions  were  reversed  and  the  right  of 
passage  along  the  foreshore  remained  the  para- 
mount right." 

The  court  did  not  advert  to  Bliindell  v.  Catteral,  ^ 
in  which  it  was  held  that  the  public  had  no  right 
to  bathe  or  walk  along  the  beach. 

This  {Barnes)  case  is  also  interesting  from  an- 
other standpoint ;  the  question  as  to  whether  a 
riparian  owner  by  reason  of  a  grant  of  the  foreshore 
from  the  State  would  have  superior  rights  to  one 
who  did  not  have  such  a  grant,  has  been  a  mooted 
subject  for  years.  The  opinion  apparently  as- 
sumes that  the  riparian  owner's  right  would  be  the 
same  in  either  event,  as  the  State  could  not  sur- 
render any  of  its  public  rights  by  a  transfer  of  the 
title  to  the  soil.  This  seems  a  perfectly  logical 
deduction  from  the  Brookhavcn  case,  which  by 
recognizing  the  abolition  of  the  jus  privatum  really 
prevents  the  State  from  transferring  anything, 
since  the  naked  title  to  the  soil  can  give  no  part 
of  the  jus  puhlicum,  which  is  all  that  the  State  has, 
and  which  it  possesses  regardless  of  the  question 
of  the  fee  ownership  in  the  foreshore.  While  this 
point  may  not  be  definitely  determined  by  either  of 
the  cases  in  question,  it  would  seem  to  be  a  corol- 
lary from  the  doctrine  of  both.  Fee  in  the  fore- 
shore may  thus  become  a  purely  academic  question 
'(1821)  5  B.  &  Aid.  268. 
240 


PERVERSION   OF   PRECEDENT 

affecting  neither  the  rights  of  the  pubHc  nor  the 
rights  of  the  riparian  owner. 

It  is  frequently  the  proud  boast  of  devotees  of 
the  English  law,  that  "the  common  law  broadens 
down  from  precedent  to  precedent";  on  the  other 
hand,  the  civilian  is  apt  to  tell  us  that  the  common 
law  by  its  slavish  adherence  to  the  rule  uf  Start' 
Decisis  has  rather  a  tendency  to  narrozu  down  irom 
precedent  to  precedent.  Both  beliefs  probably  e.x- 
press  certain  phases  of  the  truth.  The  history  of 
civil  liberty  aptly  illustrates  the  correctness  of  the 
first  view,  at  least  in  regard  to  one  great  depart- 
ment of  human  activity,  while  the  law  of  real  estate, 
still  so  full  of  archaic  matter  despite  the  efforts  of 
legislation  to  rationalize,  clarify  and  simplify  its  an- 
cient and  largely  feudal  structure,  may  well 
justify  the  other.  Perhaps  the  tendency  to  a  broad- 
ening development  in  matters  affecting  human 
liberty  is  explicable  upon  the  theory  that  as  law 
must  ultimately  reflect  the  dominant  opinion  of  the 
time,  the  growth  of  English  civil  liberty  was  due 
rather  to  the  pressure  of  enlightened  public  opinion 
from  outside  the  bar,  than  to  the  efforts  of  the  law- 
yer class  itself;  while,  on  the  contrary,  the  law  of 
real  estate  was  developed  wholly  by  lawyers  for 
a  small  class  of  land  owners  and  nearly  always  in 
hostility  to  any  attempts  at  legislative  change,  until 
it   became    a   game    for   e.\i)erts    whose    intricacies 

241 


CERTAINTY   AND  JUSTICE 

passed  the  common  understanding,  almost  as  much 
as  does  the  Hegelian  philosophy. 

The  mere  doctrine  of  precedent  may,  if  used  by 
the  courts  in  mechanical  fashion,  make  law  as  un- 
changeable as  that  of  the  Medes  and  Persians.  A 
precedent  isolated  from  the  atmosphere  of  contem- 
poraneous history  is  necessarily  unintelligible;  it 
must  be  considered  in  the  light  of  the  circumstances 
and  the  social  conditions  under  which  it  arose. 
Why  should  generations  of  judges  have  considered 
the  Philpot  case  of  more  value  in  guiding  the  judi- 
cial footsteps  than  the  "Great  Remonstrance," 
which  denounced  the  doctrine  of  that  case  as 
usurpation  ? 

If  class  opinion  tends  to  narrowness,  is  it  not 
largely  because  the  following  of  precedent  is  re- 
garded as  a  virtue  in  and  of  itself,  rather  than  as 
a  means  of  reaching  wise  and  just  results  by  apply- 
ing the  collective  and  traditional  wisdom  of  gener- 
ations of  judges  to  the  solution  of  legal  problems? 
Yet  when  this  useful  principle  is  applied  mechan- 
ically and  unhistorically,  it  may  easily  result  in  fast- 
ening upon  our  jurisprudence,  doctrines  which 
originated  neither  in  collective  nor  in  individual 
wisdom  but  were  merely  the  result  of  class  greed, 
judicial  subserviency  or  passing  public  clamor,  none 
of  which  causes  can  be  trusted  to  create  sound 
precedents.     The  point  discussed  in  this  chapter  is 

242 


PERVERSION    OF    PRECEDENT 

a  mere  incident  in  the  broad  domain  of  riparian 
rights,  but  it  involves  an  interesting  episode  of 
legal  history,  for  we  can  see  the  origin  and  watch 
the  development  of  a  legal  doctrine  until  the  day 
when  we  assist  at  its  final  obsequies.  As  a  study 
in  legal  morphology  its  discussion  seems  "worth 
while." 


243 


IX 

ALIENS  AND  THE  PROGRESS  OF  THE  LAW 

''TT^HE  subject  is  naturally  one  of  rather  narrow 
'■'  limitations.  The  general  position  of  the 
alien  is  that  of  gradual  emancipation  from  the  dis- 
abilities imposed  upon  him  as  the  result  of  preju- 
dice, of  ignorance  or  of  that  primitive  psychology 
expressed  by  the  English  costermonger  in  the  say- 
ing: "He's  a  stranger;  'eave  'alf  a  brick  at  him." 

The  substantive  rights  of  the  alien  must  be  de- 
termined by  the  general  law  of  the  land,  and  yet 
these  substantive  rights  can  have  no  value  unless 
there  be  correlative  procedural  rights,  and  would  be 
a  mere  rhetorical  flourish  were  aliens  practically  ex- 
cluded from  the  legal  tribunals. 

There  are  few  more  interesting  episodes  in  his- 
tory than  that  of  the  creation  about  the  year  300 
B.  C.  in  Rome  of  a  special  Pr?etor  (Peregrinus)  to 
hear  the  causes  of  foreigners.  Aliens  in  primitive 
communities,  as  so  delightfully  and  cogently  ex- 
plained by  Mr.  Fustel  de  Coulanges,  could  have  no 
rights  in  the  community,  for  all  rights  were  pred- 
icated upon  a  common  religion,  based  upon  the  wor- 

244 


ALIENS    AND    THE    LAW 

ship  of  common  ancestors  and  of  the  local  divinity. 
But,  yet,  even  in  tlie  time  of  Pericles  and  of  Aris- 
totle these  ancient  views  as  to  aliens  had  well-nigh 
disappeared  and  the  liberal  Athenian  democracy  had 
placed  them  in  almost  the  same  position  that  they 
now  occupy  in  modern  civilized  states,  for  we  find 
Aristotle  saying : 

"Leave  out  of  consideration  those  who  have  been 
made  citizens  or  who  have  o1)taincd  the  name  of  citi- 
zen in  any  other  accidental  manner.  We  may  say, 
first,  that  a  citizen  is  not  a  citizen  because  he  lives  in 
a  certain  place,  for  resident  aliens  and  slaves  share 
in  the  place ;  nor  is  he  a  citizen  who  has  no  legal 
right  except  that  of  suing  and  being  sued ;  for  this 
right  may  be  enjoyed  under  the  provision  of  a 
treaty.  Even  resident  aliens  in  many  places  possess 
such  rights,  although  in  an  imperfect  form;  for  they 
are  obliged  to  have  a  patron."  * 

Considering  the  position  of  the  alien  in  modern 
law  courts,  we  naturally  begin  with  England.  The 
disabilities  of  aliens  in  England  have  been  prac- 
tically removed  and  they  have  complete  and  free 
access  to  the  law  courts,  but  it  was  probably  not 
without  a  long  struggle  that  the  alien  in  England 
was  finally  admitted  into  the  courts  upon  an  equality 
with   subjects.      In   the   Middle   Ages   their   rights 

'Politics  of  Aristotle,  Jowett's  Translation,   Vol.    i.  p.  67; 
Bk.  Ill,  I,  4. 

245 


CERTAINTY   AND   JUSTICE 

were  very  uncertain  and  seem  to  have  been  gradu- 
ally acquired  by  the  foreign  merchants  as  mer- 
chants, rather  than  as  aliens.  The  merchants  were 
evidently  useful  to  the  kings  and  the  kings  pro- 
tected them  to  some  extent,  for  Littleton  says  of 
aliens  who  have  come  into  England  under  the  safe 
conduct  of  the  king: 

"They  are  not  bound  to  sue  according  to  the  law 
of  the  land,  nor  to  abide  the  trial  by  twelve  men 
and  other  solemnities  of  the  law  of  the  land,  but 
shall  sue  in  the  Chancery  and  the  matter  shall  be 
determined  by  the  law  of  nature."  ^ 

This  statement  that  their  rights  shall  be  those 
accorded  by  the  law  of  nature  has  a  peculiar  re- 
semblance to  the  French  doctrine  that  the  alien  pos- 
sesses those  rights  only  which  belong  to  the  jus 
gentium  but  not  those  which  belong  to  the  jus 
civile.  Their  rights,  however,  were  more  in  the 
nature  of  peculiar  and  occasional  privileges  granted 
by  the  king's  courts  and  they  do  not  seem  to  be 
recognized  by  the  law  of  the  land.  Pollock  and 
Maitland  say  that  the  common  belief  as  to  them 
was  that  they  were  all  usurers  and  therefore  living 
in  mortal  sin.  Henry  III  banished  the  so-called 
Caursini  (an  Italian  guild)  but  they  only  lay  hid  for 

*  Pollock  and  Maitland's  History  of  the  English  Law,  ist 
ed.,  p.  449- 

246 


ALIENS   AND   THE   LAW 

a  time,  the  king  conniving  at  their  presence  and  a 
little  afterwards  they  are  found  acquiring  splendid 
palaces  in  London  and  no  one  dared  attack  them 
for  they  called  themselves  the  Pope's  merchants. 

With  the  growth,  however,  of  the  so-called  com- 
mercial law,  the  distinction  between  aliens  and  sub- 
jects gradually  breaks  down.  This  law  is  not 
looked  upon  as  part  of  the  common  law  but  as  a 
certain  general  international  law  common  to  all 
mercantile  transactions. 

The  probable  origin  of  the  right  of  the  state  to 
take  the  property  of  aliens  is  admirably  described  by 
Pollock  and  Maitland,  as  follows : 

"The  truth  seems  to  be  that  in  the  course  of  the 
thirteenth  century  our  Kings  acquired  a  habit  of 
seizing  the  lands  of  Normans  and  other  Frenchmen. 
The  Normans  are  traitors,  the  Frenchmen  are  ene- 
mies. All  this  will  be  otherwise  if  a  permanent 
peace  is  ever  established.  But  that  permanent  peace 
never  comes,  and  it  is  always  difficult  to  obtain  a  res- 
toration of  lands  which  the  King  has  seized.  France 
is  the  one  foreign  country  that  has  to  be  considered 
in  this  context;  Germans  and  Italians  come  here  as 
merchants,  but  they  have  no  ancestral  claims  to 
urge  and  do  not  want  Kn,c:lish  lands,  while  as  to 
Scotland,  owing  to  the  Englisli  King's  claim  to  an 
overlordship,  or  to  some  other  reason,  Balliols  and 
Bruces  hold  land  on  both  sides  of  the  border  until 
a  long  war  breaks  out  between  the  two  countries. 

247 


CERTAINTY    AND   JUSTICE 

To  us  it  seems  that  the  King's  claim  to  seize  the 
lands  of  ahcns  is  an  exaggerated  generahzation  of 
his  claim  to  seize  the  lands  of  his  French  enemies. 
Such  an  exaggerated  generalization  of  a  royal  right 
will  not  seem  strange  to  those  who  have  studied  the 
growth  of  the  King's  prerogatives."  ^ 

This  is  an  amusing  illustration  of  the  absurdity 
of  trying  to  find  philosophic  justification  for  legal 
anomalies  whose  only  explanation  is  historic ;  they 
are  merely  rudimentary  survivals  like  the  vermiform 
appendix  in  man  and  the  clavicle  in  the  cat. 

The  English  law  makes  no  distinction  of  alienage 
in  the  courts,  but,  like  the  American  States,  has  long 
required  security  for  costs  from  non-residents,  this 
distinction  applying  alike  to  aliens  and  subjects. 

(a)  In  the  United  States  the  rights  of  aliens  to 
sue  in  the  federal  courts  is  guaranteed  by  the  Con- 
stitution, the  third  article  of  which  extends  the  judi- 
cial power  to 

"all  cases,  in  law  and  equity,  arising  under  this  con- 
stitution, the  Laws  of  the  United  States,  and  treat- 
ies made,  or  which  shall  be  made,  under  their  au- 
thority ;  *  *  *  tQ  controversies  between  two  or 
more  states,  between  a  state  and  citizens  of  another 
state,  between  citizens  of  different  states  *  *  * 
and  between  a  state,  or  the  citizens  thereof  and  for- 
eign states,  citizens,  or  subjects." 

'  Pages  445-46. 
248 


ALIENS    AND   THE    LAW 

The  alien  is  thus  in  a  peculiarly  favored  position, 
and,  indeed,  the  result  of  this  constitutional  pro- 
vision is  to  frequently  place  him  in  a  more  ad- 
vantageous position  than  the  citizen ;  for  the  citizen, 
indeed,  cannot  sue  in  the  federal  court  unless  the 
defendent  is  a  non-resident  of  the  State,  while  the 
alien  may  sue  the  citizen  of  any  State  in  the  proper 
federal  court,  although  they  both  reside  in  the  same 
jurisdiction. 

Questions,  of  course,  arise  as  to  what  consti- 
tutes alienage  and  the  proper  district  in  which 
actions  should  arise.  These  questions,  however, 
are  not  incident  to  the  rights  of  aliens  qua  aliens 
and  their  discussion  here  would  be  out  of 
place. 

There  is,  besides  this  constitutional  right  and 
the  general  statutory  provisions  carrying  it  out,  a 
very  peculiar  provision  of  our  federal  Judiciary 
Law  which  has  been  in  our  statutes  since  the  enact- 
ment of  the  original  Judiciary  Act  and  which  has 
been  invoked,  as  far  as  I  am  able  to  discover,  upon 
one  occasion  only.  This  provision  is  now  found  in 
the  new  federal  Judicial  Code  (Chapter  Two,  Par. 
Seventeenth)  conferring  jurisdiction  upon  the  dis- 
trict courts : 

"Of  all  suits  brought  by  any  alien  for  a  tort  only, 
in  violation  of  the  laws  of  nations  or  of  a  treaty  of 
the  United  States." 

249 


CERTAINTY   AND   JUSTICE 

I  have  searched  in  vain  for  the  origin  of  this  pe- 
culiar enactment,  but  Congress  seems  to  have  been 
guided  by  great  solicitude  for  aliens  and  a  desire  to 
give  them  the  fullest  and  freest  access  to  the  courts 
of  the  nation.  This  paragraph  was  recently  brought 
in  question  in  the  case  of  O'Reilly  v.  Brooke,  which 
was  twice  before  the  District  Court  and  was  finally 
decided  by  the  Supreme  Court  of  the  United 
States.  ^ 

In  this  suit  the  plaintiff  sued  General  Brooke,  who 
had  been  Governor-General  of  Cuba  during  the 
American  intervention,  on  the  ground  that  he  had, 
contrary  to  the  law  of  nations  and  to  the  eighth 
article  of  the  Treaty  of  Paris,  dispossessed  her  of 
property  of  which  she  had  been  lawfully  possessed 
and  which  had  been  a  hereditament  in  her  family 
since  the  early  part  of  the  eighteenth  century.  This 
property  consisted  in  the  right  to  conduct  exclu- 
sively the  slaughter  of  cattle  for  food  in  the  city 
of  Havana. 

In  the  District  Court,  when  the  case  came  up  upon 
a  demurrer,  no  serious  objection  was  made  by 
counsel  for  General  Brooke,  the  Assistant  Attorney- 
General  of  the  United  States,  to  the  jurisdiction  of 
the  District  Court,  and  the  matter  was,  therefore, 
scarcely  discussed.  It  was  assumed  that  as  the 
plaintiff  was  an  alien  and  as  the  alleged  wrongs 

'  135  Fed.  Rep.  384 ;  142  Fed.  Rep.  855 ;  209  U.  S.  45. 
250 


ALIENS   AND   THE    LAW 

were  predicated  upon  a  violation  of  international 
law  and  treaty  there  could  be  no  question  of  the 
jurisdiction  of  that  court. 

The  court  held  on  the  trial  that  the  plaintiff  had 
a  cause  of  action  against  General  Brooke  but  that 
by  reason  of  the  ratification  of  Brooke's  act  by  the 
executive  and  by  Act  of  Congress  (the  Piatt 
Amendment  so-called)  the  plaintiff's  remedy  was 
against  the  United  States. 

The  Supreme  Court  of  the  United  States  ter- 
minated the  controversy  by  deciding  that  "the  plain- 
tiff had  not  possessed  property  within  the  meaning 
of  the  treaty  but  that  it  was  an  office  which  ter- 
minated with  the  Spanish  sovereignty."  The  only 
reference  made,  however,  to  the  section  of  the  Ju- 
diciary Act  in  question  is  the  following: 

"If  the  plaintiff  lost  her  rights  once  for  all  by 
General  Brooke's  order,  and  so  was  disseised,  it 
would  be  a  question  to  be  considered  whether  a  dis- 
seisin was  a  tort  within  the  meaning  of  Rev.  Stat, 
Section  563  (16).  In  any  event  the  question  hardly 
can  be  avoided  whether  the  supposed  tort  is  *a  tort 
only,  in  violation  of  the  law  of  nations'  or  of  the 
Treaty  with  Spain.  In  this  court  the  plaintiff  seems 
to  place  more  reliance  upon  the  suggestion  that  her 
rights  were  of  so  fundamental  a  nature  that  they 
could  not  be  displaced,  even  if  Congress  and  the 
executive  should  unite  in  the  effort.  It  is  not  neces- 
sary to  say  more  about  the  contention  than  that  it 

251 


CERTAINTY   AND   JUSTICE 

is  not  the  grrmnd  on  which  the  jurisdiction  of  the 
{district  Court  was  invoked."  * 

Wc  have  thus  no  further  h;,dit  upon  this  very 
pecuHar  statute.  It  is  to  be  hoped  that  the  courts 
will  have  further  opportunity  to  construe  it,  as  it 
seems  to  have  been  sadly  overlooked  by  members  of 
the  bar  and  might  be  made  use  of  to  maintain  and 
develop  the  rights  of  aliens  under  international  law. 
The  statute  is  in  any  event  fraught  with  potentiality 
and  its  development  will  be  watched  with  interest. 

There  is  another  peculiar  situation  arising  with 
regard  to  the  federal  courts.  We  have  seen  that 
they  might  be  resorted  to  by  American  citizens  and 
by  aliens.  There  exists,  however,  a  very  large  class 
of  persons  under  our  flag  who,  not  fitting  into 
either  of  these  categories,  may  not  have  their  day 
in  the  federal  courts. 

It  is,  in  any  event,  apparent  that  the  peoples  of 
our  unincorporated  territories  are  in  a  very 
anomalous  position,  as  we  have  seen  in  a  former 
chapter,  and  that  as  far  as  their  right  of  access  to 
our  courts  is  concerned,  they  have  not  the  rights 
and  privileges  of  aliens.  As  long  as  very  few  of 
them  come  into  the  States  of  the  United  States  the 
question  may  be  largely  academic,  but  if  they  should 
begin  at  any  time  to  migrate  on  a  large  scale  from 

'209  U.  S.  45,  at  p.  51. 
252 


ALIENS   AND   THE    LAW 

their  own  homes  to  other  portions  of  our  dominion, 
the  question  must  necessarily  become  acute  and  call 
for  definite  settlement  of  their  status  by  Congress. 

(b)  The  position  of  aliens  in  the  State  courts 
is,  of  course,  determined  by  the  procedural  law  in 
each  jurisdiction.  Generally  speaking,  we  may  say 
that  there  is  no  discrimination  against  aliens  as 
aliens.  The  State  laws  generally  provide  that  in 
suits  brought  by  non-residents  against  a  resident 
there  shall  be  security  for  costs.  The  New  York 
forum  may  be  taken  as  a  normal  one  and  the  Code 
of  Civil  Procedure  prescribes  the  formalities  for 
the  giving  of  such  security.  These  provisions 
apply  not  only  to  non-residents  of  the  State,  but  in 
certain  cases  to  non-residents  of  the  county.  The 
security  is  given  to  cover  the  costs  solely  and  not 
the  amount  of  money  judgment  which  may  be 
recovered.  The  usual  bond  required  does  not  ex- 
ceed $250. 

It  will  be  noted  here,  however,  that  the  require- 
ment is  based  not  upon  allegiance  but  upon  mere 
non-residence,  and  that  a  Frenchman,  an  English- 
man or  a  resident  of  Massachusetts  is  placed  upon 
the  same  footing. 

These  statutes,  therefore,  do  not  enter  into  the 
category  of  legislation  dealing  with  or  affecting 
the  status  of  aliens  as  such.  Disabilities  of  aliens 
in  this  respect  are  due  not  to  their  allegiance  but 

253 


CERTAINTY   AND   JUSTICE 

tu  the  accident,  where  it  exists,  of  their  non-resi- 
dence. Resident  aliens  have  practically  the  same 
right  to  sue  as  Slate  citizens.  Non-resident  aliens 
are  under  some  disabilities  as  regards  acting  as 
executors  or  administrators.* 

The  (juestion  of  allegiance  in  Continental  Europe 
is  of  more  complexity  than  in  England  or  America. 
We  will  take  the  French  system  as  fairly  typical. 
Variations  from  that  system  will  be  mentioned 
more  or  less  incidentally.  The  situation  of  aliens 
in  France  as  regards  their  private  rights  is  regu- 
lated by  the  eleventh  article  of  the  Civil  Code, 
which  prescribes : 

"Art.  II.  An  alien  shall  enjoy  in  France  the 
same  civil  rights  as  those  granted  to  French  people 
by  the  treaties  of  the  nation  to  which  such  alien  be- 
longs." 

Few  articles  of  any  code  have  given  rise  to 
more  discussion  both  among  writers  and  in  the 
courts.  It  would  appear  certain,  however,  that  this 
article  establishes  not  legislative  reciprocity  but 
diplomatic  reciprocity.  Thus  strictly  speaking,  the 
alien  in  France  enjoys  only  those  civil  rights  ac- 
corded to  him  by  treaty  and  not  those  which  his 
national  law  might  accord  to  Frenchmen  in  the 
alien's  country.     It  has  been  held  that  the  alien 

'  New  York  Code  Civil  Procedure,  Sees.  2612  and  2661. 
254 


ALIENS   AND   THE    LAW 

would  enjoy  these  rights  even  when  the  treaty 
which  accorded  them  to  Frenchmen  contains  no  re- 
ciprocal stipulation  that  they  should  be  accorded  to 
such  aliens  in  France.^ 

This  reciprocity  is  one  that  belongs  to  the  nation 
as  a  nation,  not  to  the  individual  as  such.  The 
individual  can  only  ask  for  the  same  rights  as 
would  be  accorded  to  a  Frenchman  in  similar  con- 
dition, and  he  could  in  no  event  require  a  wider 
range  of  rights  than  those  accorded  to  Frenchmen 
themselves.^ 

Most  of  the  treaties  deal  with  particular  sub- 
jects, commercial  relations,  copyright,  trade-mark, 
patents,  etc.  There  are  few  conventions  which 
bestow  enjoyment  of  all  private  rights  upon 
foreigners.^ 

The  question  of  deciding  what  rights  a  foreigner 
has  in  the  absence  of  treaty  has  given  rise  to  much 
difficulty  and  a  great  amount  of  discussion  and  lit- 
igation. The  general  principle  seems  to  be  that  we 
must  eliminate   from  the  category  of  rights  those 

'Court  of  Cassation,  Feb.  9,  183 1 ;  Sirey  1831,  i,  415; 
Aubrey  &  Rau,  Tome  i,  Par.  79,  p.  310;  Deniolonibe,  Tome  i, 
No.  241,  and  Toullier,  4,  No.  102;  Baudry-Lacantinerie 
Houques  Fourcade,  Tome  i,  632. 

*  Court  of  Cassation,  Aug.  10,  1813.  Sirey,  "Recueil," 
1813;  Aubry  &  Rau,  Tome  i,  p.  79;  Weiss,  Treatise,  p.  124. 

*  Franco-Servian  Treaty,  Jan.  18,  1883.  Convention  Consu- 
laire  Franco-Espagnole,  Jan.  7,  1862;  Franco-Brazilian  Treaty, 
clause  of  the  most  favored  nation  in  civil  law. 

255 


CERTAINTY   AND  JUSTICE 

peculiar  and  positive  dispositions  of  the  civil  law, 
such  as  the  capacity  to  transmit  and  to  inherit  ab 
intcstat  ^  the  right  to  ac(iuire  mining  concessions, 
to  become  stockholders  of  the  bank  of  France,  pro- 
tection of  literary  rights,  patents,  copyrights,  etc., 
but  there  are  still  heated  controversies  regarding 
other  private  rights  which  do  not  belong  peculiarly 
to  the  civil  law. 

There  are  four  systems  advocated  by  well-known 
writers  and  jurists.  However,  the  system  which 
seems  to  have  the  most  numerous  and  notable  ad- 
herents is  that  which  is  found  set  forth  in  the 
authoritative  work  on  the  Civil  Law  of  Aubry  and 
Rau  (Merlin,  Duranton,  Proudhon,  Richelot, 
Toullier).  In  this  system  the  expression  "Droit 
Civil"  includes  not  all  private  rights  but  only  those 
which  are  derived  from  the  positive  law  or  jus 
civile.  These  rights  the  stranger  cannot  enjoy  in 
the  absence  of  a  treaty  unless  he  has  been  authorized 
to  fix  his  domicile  in  France.  In  regard,  however, 
to  the  rights  which  are  derived  from  the  jus 
gentium,  Article  ii  of  the  Code  does  not  apply  and 
the  alien  may  always  exercise  them.^ 

While  this  distinction  may  be  theoretically  possi- 
ble, it  is  in  practice  very  difficult  of  application. 

*  Arts.  726  and  912  of  the  Civil  Code.  Law  of  July  14,  1819. 

■Court  of  Cassation,  June  7,  1826.  "Recueil"  of  Sirey, 
1826.  July  II,  1848;  "Recueil"  of  Dalloz.  1848,  i,  140,  May  20, 
1862 ;  Sirey,  1862,  i,  673,  Feb.  16,  1875 ;  Sirey,  1875,  i,  193. 

256 


ALIENS   AND   THE    LAW 

What  are  the  rights  which  fall  within  the  domain 
of  jus  ck'ilc  and  what  those  which  belong  to  the 
jus  gentium? 

Some  writers  propose  as  the  test  whether  the 
right  is  generally  admitted  under  all  legal  systems 
(Aubry  and  Ran) ;  other  writers  find  this  criterion 
insufficient  and  think  it  necessary  to  analyze  each 
case  on  its  own  merits.  As  a  matter  of  fact,  there 
is  no  absolute  criterion;  each  question  must  be 
examined  as  it  comes  up.  Some  have  been  pretty 
well  settled  by  current  of  decisions ;  others  are  still 
open.  The  tendency  of  the  courts  is  to  diminish 
the  number  of  civil  rights,  pure  and  simple,  which 
belong  exclusively  to  Frenchmen  and  from  whose 
enjoyment  foreigners  are  excluded.  The  follow- 
ing rights  are,  however,  generally  considered  to  be 
civil  rights : 

I.  The  right  of  adoption  or  of  being  adopted; 
the  right  of  prescription;  the  right  to  invoke  juris- 
diction of  a  French  court  in  a  case  to  which  no 
Frenchman  is  a  party ;  the  right  of  jouissance  legale 
of  father  and  mother.  2.  The  right  of  hypotheque 
legale. 

The  question  of  the  right  to  guardianship  has 
been  in  some  doubt  but  has  finally  been  held  to 
belong  generally  to  the  natural  law  (Tribunal  of 
the  Seine,  2  May,  1900).  There  are,  however,  de- 
cisions the  other  way. 

257 


CERTAINTY   AND   JUSTICE 

Early  decisions  deny  to  an  alien  the  right  of 
domicile  in  I'Vance  unless  he  had  complied  with 
Articles  13  and  102  of  the  Code  Civil,  which  pre- 
scribe as  follows: 

"13.  (Amended  by  Law  of  26th  June,  1889.) 
An  alien  who  has  been  authorized  by  decree  to  es- 
tablish his  domicile  in  France  shall  have  the  enjoy- 
ment of  all  civil  rights. 

"The  effect  of  the  authorization  shall  cease  at  the 
expiration  of  five  years  if  the  alien  does  not  ask  to 
be  naturalized  or  if  his  application  is  rejected.  In 
case  of  decease  before  naturalization  the  authoriza- 
tion and  the  time  of  residence  which  has  followed 
shall  count  for  the  wife  and  children  who  were 
minors  at  the  time  of  the  decree  granting  such  au- 
thorization. 

"102.  The  domicile  of  every  Frenchman  as  to 
the  enjoyment  of  his  civil  rights  is  at  the  place  of  his 
principal  establishment." 

This  doctrine  has  been  greatly  tempered  by  the 
judicial  recognition  of  a  domicile  in  fact  (de  facto), 
to  which  are  attached  certain  legal  incidents.  It 
seems  reasonably  accurate  to  say  that  the  permis 
de  sejoiir  under  Article  13  has  now  become  a  pre- 
liminary to  naturalization  and  that  a  domicile  de 
facto  in  France  will  give  to  the  foreigner  the  rights 
usually  springing  from  domicile  among  civilized 
nations  with  the  exception  above  referred  to  re- 

258 


ALIENS   AND   THE    LAW 

garding  the  possession  of  certain  rights  altogether 
pecuHar  to  the  civil  law. 

With  these  preliminary  observations  as  to  the 
substantive  rights  of  aliens  in  France,  I  will  take 
up  the  question  of  their  standing  before  the  courts. 
This  question  may  be  conveniently  grouped  under 
three  heads : 

(i)  The  provisions  for  security  for  legal  ex- 
penses required  of  aliens  as  such  (jitdicatimi  solvi)  ; 

(2)  What  particular  local  court  has  jurisdiction 
over  suits  between  aliens  or  between  aliens  and 
Frenchmen,  and 

(3)  The  rights  of  aliens  as  against  other  aliens. 
As  a  general  principle,  all  aliens  are  required  to 

furnish  an  indemnity  before  they  can  come  into 
a  French  court  to  sue  a  Frenchman.  Article  16 
of  the  Code  Civil  provides  as  follows: 

"16.  (Amended  by  Law  of  5th  of  March, 
1895.)  In  all  cases  an  alien  who  is  the  original 
plaintiff  or  interpleads  shall  be  obliged  to  give  se- 
curity for  the  expenses  and  damages  resulting  from 
the  suit,  unless  he  owns  real  estate  in  France  of  suf- 
ficient value  to  secure  the  payment  thereof." 

and  this  article  itself  has  been  modified  by  the  law 
of  the  5th  of  March,  1895,  which  strikes  from  the 
code  the  exception  relating  to  commercial  cases, 
thus  making  the  security  applicable  to  cases  in  com- 

259 


CERTAINTY   AND   JUSTICE 

mercial  courts  as  well  as  elsewhere.  This  security 
is  termed  in  the  French  law  "caution  jiidicatum 
sohi."  The  Latin  expression  is  somewhat  mis- 
leading, since  the  origin  of  this  provision  for  se- 
curity seems  to  go  back  to  the  later  Roman  law 
which  exacted  of  every  plaintiff,  whether  Roman 
citizen  or  foreigner,  the  caiitio  pro  expcnsis,  which 
related  only  to  the  expenses  of  the  trial  and  did 
not  guarantee  the  defendant  for  any  judgment 
which  he  might  obtain  against  the  plaintiff.  In 
France  the  judicatum  solvi  consists  in  a  guaranty 
given  by  the  plaintiff,  the  object  of  which  is  to 
furnish  security,  not  for  the  execution  of  the  judg- 
ment, as  the  Latin  phrase  would  seem  to  indicate, 
but  for  the  payment  of  the  costs  or  expenses  of 
litigation  by  the  alien  as  wtII  as  any  damages 
which  may  have  been  recovered  by  the  defendant 
in  the  suit.  Under  the  terms  of  Article  i66  of 
the  Code  of  Civil  Procedure  this  indemnity  is 
requisite,  without  exception,  and  must  be  provided 
for  in  limine;  this  security,  however,  not  being 
considered  matter  of  public  policy  {disposition 
d'ordre  puhliqiie),  the  party  to  the  litigation  may 
consent  to  forego  it  and  the  French  defendant  who 
did  not  ask  for  it  at  the  proper  time  would  be  con- 
sidered as  having  renounced  his  right  to  it.  On 
the  other  hand,  it  is  considered  as  a  matter  purely 
of  the  civil  law  and  is  consequently  not  accorded 

260 


ALIENS    AND   THE    LAW 

to  an  alien  suing  another  alien  in  France,  unless, 
of  course,  the  alien  plaintiff  should  possess  an 
authorized  domicile  in  France,  under  Article  13,  in 
which  case  he  necessarily  enjoys  all  the  civil  rights 
of  Frenchmen. 

The  only  exceptions,  in  the  absence  of  treaty 
rights,  to  the  furnishing  of  this  guaranty  are: 

(i)  If  the  alien  possess  in  France  real  estate 
of  a  value  equal  at  least  to  the  amount  of  any 
indemnity  that  might  be  fixed  by  the  court; 

(2)  Persons  authorized  to  fix  their  domicile  in 
France   (Article  13)  ; 

(3)  Where  there  exists  legislative  reciprocity; 

(4)  Where  there  are  treaties  between  France 
and  other  nations  by  which  the  nationals  of  the 
contracting  parties  are  freed  from  this  obligation. 
(Code  Civil,  Article  11.) 

The  giving  of  the  security  is  carefully  regulated 
by  rules  of  procedure  which  it  is  not  necessary 
to  detail  here.  The  question  of  amount  is  submitted 
by  the  defendant  to  the  court,  and  after  an  oppor- 
tunity for  discussion  by  the  parties  to  the  litigation, 
the  sum  is  fixed  by  judicial  order. 

In  practice,  indemnity  is  usually  made  by  a  de- 
posit of  money  or  of  securities  in  one  of  the  public 
depositories,  usually  La  Caissc  Gcncralc  dcs  Depots 
et  Consignations.  The  order  fixes  the  terms  under 
which  this  deposit  is  to  remain  in  the  depository. 

261 


CERTAINTY   AND   JUSTICE 

In  case  rif  an  appeal  by  the  foreign  plaintiff,  an- 
other provision  for  indemnity  is  necessary. 

The  two  important  exceptions  to  the  rule,  how- 
ever, are  the  one  relating  to  legislative  reciprocity 
and  that  relating  to  diplomatic  reciprocity.  Jurists 
speak  of  legislative  reciprocity  as  belonging  to  the 
domain  of  internal  (or  municipal)  law,  and  diplo- 
matic or  treaty  reciprocity  as  belonging  to  that  of 
the  external  (or  international)  law. 

For  many  years  subsequent  to  the  enactment  of 
the  code,  the  general  opinion  among  jurists  was 
unfavorable  to  the  rule  of  exacting  this  security 
from  aliens.  The  matter  was,  however,  submitted 
to  a  committee  (commission)  of  the  Chamber  of 
Deputies  for  a  report  as  to  the  expediency  of  re- 
forming the  law  in  1892,  and  the  result  was  a  re- 
port to  the  Chamber  in  which  the  committee  cited 
the  case  of  a  naval  constructor  of  Treport  who, 
having  brought  suit  in  England,  was  forced  to 
furnish  an  indemnity  of  2,500  francs.  It  was 
argued  that  such  treatment  on  the  part  of 
the  English  should  be  met  Avith  reciprocity  and 
the  consequence  was  the  law  of  the  5th  of 
March,  1895,  above  referred  to,  which  abolished 
the  immunity  from  the  judication  solvi  ac- 
corded by  the  code  in  cases  in  the  tribunals  of 
commerce. 

This  doctrine  of  legislative  reciprocity  which 
262 


ALIENS   AND   THE    LAW 

the  courts  apply  to  the  question  of  judicatmn  solvi 
is  really  nothing  more  than  a  revival  of  the  old 
right  of  retorsion.  While  apparently  fair  at  first 
view,  it  has  the  grave  defect  of  naturally  leaving 
the  initiative  to  the  other  party  and  creating  un- 
friendly feelings  and  thus  interfering  with  that  ami- 
able and  equable  frame  of  mind  which  conduces  to 
the  adoption  of  reciprocity  treaties. 

It  is,  in  my  opinion,  an  unfortunate,  not  to  say  a 
retrograde  and  vicious  doctrine. 

Many  nations  have  availed  themselves  of  the 
diplomatic  method  to  avoid  the  necessity  of  fur- 
nishing this  indemnity.  Some  treaties  expressly 
exempt  nationals  of  the  contracting  parties  from 
the  giving  of  security  as  a  condition  precedent  to 
bringing  suit,  while  others  content  themselves  with 
merely  stating  that  the  nationals  of  each  party  shall 
have  free  access  to  the  tribunals,  and  again  some 
countries  have  adopted  in  this  respect  the  most- 
favored-nation  clause. 

We  find  in  Continental  Europe  a  good  deal  of 
diversity  in  regard  to  the  furnishing  of  indemnity 
judicatmn  solvi.  Some  nations,  among  which  we 
find  Italy,  Portugal,  Denmark  and  a  few  smaller 
ones,  have  abolished  it  entirely.  The  Italian  Civil 
Code  of  1865,  Article  8,  provides  that:  "the  alien 
is  admitted  to  the  enjoyment  of  the  civil  rights 
accorded  to  citizens."     Italy  in  this  respect,  as  in 

263 


CERTAINTY    AND   JUSTICE 

many  other  matters  relating  to  private  law,  is  in 
the  forefront  of  civilization. 

Countries  like  Belgium  and  Luxemburg  follow 
the  French  rule,  as  does  Holland.  Russia  exacts 
indemnity  jtidicatum  solvi  except  in  the  case  where 
the  plaintiff  is  solvent.  Switzerland,  like  England 
and  the  United  States,  does  not  discriminate  be- 
tween its  citizens  and  aliens,  but  requires  all  non- 
residents to  furnish  security. 

Germany  bases  its  law  entirely  upon  the  system 
of  legislative  reciprocity.  The  German  judge  must 
ascertain  the  law  regarding  security  prevailing  in 
the  country  to  which  the  plaintiff  belongs.  Austria, 
since  1898,  has  adopted  the  same  system,  as  has 
been  done  by  Spain  and  Hungary.  All  these  coun- 
tries, however,  have  also  numerous  treaties  of 
exemption,  and  it  is  necessary  in  each  case  to  ascer- 
tain whether  the  country  of  the  forum  does  not 
have  a  treaty  with  the  nation  to  which  the  plaintiff 
in  the  particular  case  belongs. 

It  is  apparent  that  this  question  is,  in  Continental 
Europe  at  least,  in  a  condition  complicated,  unsatis- 
factory and  unsystematic,  since  intelligent  and  en- 
lightened public  opinion  surely  requires  that  an 
alien,  merely  because  of  his  alienage,  should  not 
be  subjected  to  the  necessity  for  furnishing  any 
guarantees  not  required  of  a  national.  The  number 
of  treaties  to  this  effect  indicates  the   feeling  of 

264 


ALIENS   AND   THE    LAW 

the  nations.  Two  solutions  of  the  difficulty  are 
possible:  (i)  a  general  legislative  abolition  of  this 
limitation  on  the  right  of  foreigners  to  sue,  or  (2) 
if  this  be  impracticable,  a  series  of  general  treaties 
or  a  general  Hague  convention  bringing  about  this 
result.  Probably  the  latter  is  the  more  practical 
course  and  the  one  which  will  be  eventually  fol- 
lowed. 

When  a  foreigner  sues  or  is  sued  in  France,  the 
question  at  once  arises  as  to  where  the  venue  of 
the  suit  should  be  laid.  In  case  the  foreigner  has 
a  domicile,  even  de  facto,  in  France,  the  tribunal 
of  his  domicile  will  have  jurisdiction.  If  the  de- 
fendant is  a  corporation  and  possesses  a  branch 
office  in  France,  the  tribunal  of  the  district  in  which 
this  branch  office  is  situated  has  jurisdiction.  In 
the  case  of  commercial  tribunals,  the  question  is 
regulated  just  as  it  would  be  between  Frenchmen, 
the  jurisdiction  of  the  tribunal  being  based  upon 
certain  incidents  relating  to  the  origin  or  place  of 
fulfillment  of  the  obligation.  (Article  420  of  the 
Code  of  Civil  Procedure.) 

Article  14  of  the  French  Code  Civil  provides  that 
a  foreigner 

"even  not  residing  in  France,  may  be  summoned  be- 
fore the  French  courts  for  the  fulfillment  of  obliga- 
tions contracted  by  him  in  France  towards  a  French 
person.    He  may  be  called  before  the  French  courts 

265 


CERTAINTY    AND   JUSTICE 

for  ohlij^ations  contractecl  by  him  in  a  foreign  coun- 
try towards  French  people." 

and  Article  15  of  the  Code  declares  on  the  other 
hand  that : 

"a  Frenchman  may  be  called  before  the  French 
courts  for  obligations  contracted  by  him  in  a  foreign 
country,  even  towards  an  alien." 

These  provisions  seem  reciprocally  fair,  and  the 
questions  that  arise  as  to  the  local  tribunal  having 
jurisdiction  of  the  particular  affair  are  matters  of 
technical  procedure,  having  little  or  no  relation  to 
the  alienage  of  the  parties,  but  ultimately  governed 
either  by  domicile,  place  of  business  or  some  inci- 
dent connected  with  the  origin  or  fulfillment  of  the 
obligation  in  question. 

A  more  difficult  question  arises  as  to  suits  be- 
tween foreigners.  The  Civil  Code  contains  no  pro- 
vision regulating  the  rights  of  foreigners  to  sue 
each  other  before  the  French  tribunals.  The  orig- 
inal draft  of  the  Code  ( 1801 )  conferred  upon  aliens 
all  civil  rights.  This  was  modified,  and  under  the 
dominant  influence  of  the  First  Consul.  Article  11, 
above  referred  to,  was  enacted.  There  has  thus 
been  a  good  deal  of  discussion  among  the  jurists 
and  in  the  schools  as  to  the  rights  of  foreigners 
to  sue  each  other,  it  being  maintained  on  the  one 

266 


ALIENS   AND   THE    LAW 

hand  that  the  French  tribunals  were  for  French- 
men only  and  that  foreigners  had  no  standing.  On 
the  other  hand,  the  more  liberal  minded  and  modern 
school  of  jurisconsults  has  always  maintained  that 
the  French  tribunals  were  under  a  social  duty  to 
render  justice,  not  only  to  their  nationals,  but 
to  every  man  on  their  territory  who  demanded 
it. 

The  tribunals  have  in  fact  followed  a  middle 
course,  the  general  principle  being  that  they  are 
not  compelled  by  positive  law  to  take  jurisdiction 
in  litigations  between  foreigners.^  Nevertheless, 
as  they  are  not  prohibited  from  entertaining  juris- 
diction in  such  matters  by  the  code,  they  will  do 
so  where  they  think  common  justice  or  public  policy 
require  it  and  in  every  case  where  a  foreigner  has 
been  admitted  to  domicile  (Article  13)  or  where 
his  rights  have  been  guaranteed  by  treaties,  in 
general  commercial  matters  and  in  matters  where 
provisional  measures  must  be  taken  to  preserve 
property  or  public  health  or  morals.  In  effect,  the 
exceptions  to  the  general  rule  are  so  numerous  that 
there  remains  nothing  except  questions  of  a  purely 
personal  nature  arising  between  foreigners  to  which 
the  old  rule  would  seem  applicable. 

In  matters  concerning  real  estate,  there  can  be 

*  Cour  de  Cassation  of  the  2nd  of  April,  1833.     Sirey,  1833, 
I,  435- 

267 


CERTAINTY    AND   JUSTICE 

no  r|iic.stion  of  the  jurisdiction  of  the  tribunals, 
which  is  there  not  dependent  upon  the  citizenship 
or  ahenage  of  the  parties,  but  upon  the  situs  of  the 
property.      (Article  3,  Code  Civil.) 

In  personal  actions,  the  tribunals  exercise  a  very 
large  measure  of  discretion,  for  instance,  divorces 
between  foreigners  are  frequently  granted  where  it 
appears  that  there  is  no  other  jurisdiction  which 
can  properly  grant  them.  This  is  largely  predicated 
upon  the  growth  of  the  doctrine  of  domicile  de 
facto,  the  adoption  of  v;'hich  tends  to  give  persons 
actually  domiciled,  although  without  permit,  most 
civil  rights.  In  divorce  or  separation  cases,  the 
party  alleging  lack  of  jurisdiction  must  prove 
that  some  other  court  would  have  jurisdiction 
over  the  question,  otherwise  the  plea  w'ill  be  over- 
ruled.^ 

In  commercial  cases,  jurisdiction  is  a  question 
of  right,  and  is  not  facultative.  The  alien  cannot 
raise  the  question,  nor  can  the  judge  refuse  to  take 
jurisdiction.  This  seems  to  be  based  upon  the 
doctrine  admitted  in  the  discussions  leading  to  the 

'Court  of  Appeals  of  Dijon,  April  7,  1887;  Paris  Court  of 
Appeal.  Nov.  4,  1890;  Journal  de  Droit  International  Prive 
of  Clunet.  1890,  p.  483;  Tribunal  Civil  of  the  Seine,  1893; 
Journal  de  Droit  International  Prive  of  Clunet,  1893,  p.  160; 
Lyons  Court  of  Appeals,  March  10,  1894;  Sirey,  1895,  2,  298; 
Paris,  Jan.  14,  1896,  Journal  de  Droit  International  Prive, 
Clunet,  1896,  p.  149. 

268 


ALIENS   AND   THE    LAW 

drafting  of  the  Code  Civil  that  in  commercial 
matters  the  Civil  Code  did  not  modify  the  exist- 
ing law.  The  mercantile  or  commercial  law  ad- 
ministered by  the  special  commercial  tribunals 
is  held  to  deal  with  a  class  of  cases  arising 
from  business  relations  and  outside  of  general 
civil  law.  Thus  questions  of  alienage  or  of 
citizenship  are  necessarily  excluded  from  such 
tribunals. 

Public  policy  further  requires  that  a  great  number 
of  provisional  remedies  shall  be  accorded,  such  as 
those  for  the  safety  of  minors  and  incompetents, 
or  of  properties  situated  in  France  belonging  to 
foreign  decedents,  etc.  The  rules  upon  this  subject 
not  being  found  in  the  Code  Civil  must  be  sought 
for  in  the  decisions  of  the  courts  and  it  is,  there- 
fore, difficult  to  systematize  them.  The  general 
tendency  is,  however,  in  these  matters  to  assimilate 
the  alien  to  the  citizen,  and  the  cases  in  which  they 
are  excluded  from  the  tribunals,  simply  by  reason 
of  the  fact  that  the  litigation  involves  the  rights  of 
aliens,  are  exceptional. 

The  English  and  American  law  in  opening  the 
national  tribunals  to  native  and  alien  alike  are  in 
full  accord  with  the  best  public  opinion  of  our 
time  which  conceives  that  the  alien  should  have 
equal  rights  with  the  citizen  or  subject,  to  appeal 
to    the    national    courts.      In    many    countries    of 

269 


CERTAINTY   AND   JUSTICE 

Europe  certain  disabilities  exist  rather  because  of 
associating  alienage  with  mere  non-residence,  than 
because  of  existing  prejudice  against  aliens.  This 
seems  as  illogical  as  unnecessary  and  must  in  time 
disappear. 


370 


X 


PROGRESS      OF      INTERNATIONAL      LAW      IN 
TREATMENT   OF   POLITICAL   CRIME 

/'^  ERTAIN  subjects  seem  to  recur  for  discussioit 
^^  periodically.  Long  intervals  of  quiescence, 
during  which  they  provoke  little  or  no  discussion, 
are  broken  by  some  series  of  events  which  bring 
the  dormant  and  only  half-solved  question  again 
before  a  public,  who,  misconceiving  all  the  diffi- 
culties, can  not  understand  why  lawyers  and  the 
law  do  not  reach  solutions  of  the  problem  \vith 
mathematical  precision.  Certain  enthusiastic  pa- 
triots, during  the  French  Revolution,  thought  with 
Jack  Cade  that  the  simplest  way  to  resolve  the 
intricacies  of  the  law  was  to  hang  the  lawyers,  and 
thus  allow  men  to  live  together  in  brotherly  love 
under  the  guidance  of  a  few  general  principles, 
which,  in  the  absence  of  the  legal  profession,  no 
sane  citizen  either  could,  or  would,  misinterpret  or 
cavil  over.  Simple  the  proposed  solution  certainly 
was,  but  its  efficacy  may  be  doubted,  since  the  aboli- 
tion of  the  bar  which  was  actually  decreed,  was  not 
followed  by  any  halcyon  time  of  concord.     Only 

271 


Cr:RTAINTY    AND    JUSTICE 

for  a  time  could  street  fights  take  the  place  of 
forensic  disputation,  and  the  speedy  restoration  of 
the  "urdrc  dcs  cwocats"  leads  to  the  cf)nclusion 
that  the  alternative  system  was  not  very  successful. 

In  the  domain  of  much  mooted  and  periodically 
recurring  legal  controversies,  the  question  of 
whether  extradition  should  be  granted  for  political 
offense,  occupies  a  prominent  place. 

To  the  man  in  the  street,  the  answer  may  seem 
easy;  was  not  Washington  a  rebel  once,  General 
Lee  an  insurgent,  and  the  great  Kossuth  a  hero 
whose  misfortunes  entitled  him  to  national  sym- 
pathy, and  hence  should  not  the  political  refugee 
be  accorded  a  ready  and  welcome  asylum  in  this 
hospitable  land?  Yet  even  the  man  in  the  street 
may  be  made  to  look  more  leniently  upon  the 
lawyer's  great  weapon,  the  "distinction"  when  re- 
minded that  in  the  class  of  political  .offenders  may 
also  be  placed  objects  of  universal  execration  like 
Wilkes-Booth,  Guiteau,  Czolgolz,  Fieschi,  Orsini, 
the  assassins  of  Carnot  and  of  the  late  kings  of 
Italy  and  Portugal  as  well  as  the  men  of  the  Paris 
Commune,  whose  monstrosities  shocked  the  civ- 
ilized world. 

The  man  in  the  street  would  recoil  in  horror 
should  you  ask  him  to  class  as  equally  entitled  to 
asylum  on  American  soil  men  like  Lafayette  or  Carl 
Schurz  and  the  Communists  of  1870  who  cruelly 

272 


PROGRESS    OF    INTERNATIONAL    LAW 

tortured  and  killed  General  Breda,  an  honorable 
and  distinguished  officer,  when,  desiring  to  save  use- 
less bloodshed,  he  presented  himself  with  a  white 
flag  as  a  messenger  of  peace.  The  spontaneous  dif- 
ferentiation which  the  universal  instinct  of  every 
civilized  community  would  make  between  such 
cases,  may  not  as  yet  correspond  to  any  legal  dis- 
tinction, nor  may  it  have  l)een  specifically  formu- 
lated, but  can  international  law  long  fail  to  recog- 
nize a  sentiment  at  once  so  obvious  and  commanding 
such  general  acquiescence? 

We  have  seen  our  government  quite  recently  re- 
fuse to  extradite  a  man  charged  with  the  killing  of 
three  women.  The  American  people  are  a  chival- 
rous nation,  and  women  killers,  it  is  safe  to  say, 
will  never  be  regarded  by  them  with  sincere  ad- 
miration. The  fact  that  the  man  in  question,  so 
the  public  prints  report,  has  been  found  a  vagrant 
in  the  Chicago  streets,  rather  than  been  made  the 
victim  of  public  banquets,  sufficiently  disposes  of 
the  question  as  to  the  popularity  of  that  kind  of 
a  hero  among  the  American  people. 

The  query  is :  can  some  formula  be  found  by 
which  international  law,  keeping  in  touch  with  the 
moral  requirements  of  the  age,  may  differentiate 
between  those  who  have  sought  refuge  here,  after 
having  honestly  and  fairly — although  by  revolu- 
tionary methods — sought  to  change,  or  modify,  a 

273 


CKRTAINTY    AND   JUSTICE 

governmental  system,  and  those  who,  although  their 
acts  may  have  been  inspired  by  political  motives, 
have  yet  been  guilty  of  offenses  generally  reprobated 
by  all  civilized  nations?  The  answer  to  this  query 
will  involve  some  examination  into  the  nature  of 
political  crime  and  the  present  treaty  law  on  the 
subject. 

Evolution,  legal  as  well  as  biological,  sometimes 
appears  to  play  queer  antics.  Political  offenses, 
now  generally  excepted  from  the  operation  of  ex- 
tradition treaties  originally  were  the  sole  offenses 
for  which  extradition  was  sought  or  granted. 
Without  going  back  to  the  proclamation  of  the 
Athenians  promising  to  deliver  up  those  seeking 
refuge  on  their  territory  who  had  attempted  to  mur- 
der Philip  of  Macedon,  we  find  a  very  early,  if  not 
the  earliest,  treaty  of  extradition  concluded  in  1147, 
between  Henry  II  of  England  and  King  William  of 
Scotland,  providing  for  the  surrender  of  traitors  and 
felons.  In  1303  a  like  clause  is  found  in  a  treaty 
between  France  and  England.  Again,  we  find 
Henry  VII  obtaining  from  Spain  the  rendition  of 
the  Duke  of  Suffolk,  afterwards  executed  by  Henry 
VIII,  and  Denmark  surrendering  some  of  the  men 
who  had  put  Charles  I  to  judgment  and  execution. 

In  1790  Spain  delivered  to  France,  Oge,  charged 
with  insurrection  in  San  Domingo. 

As  late  as  1801  the  Senate  of  the  Free  City  of 
274 


PROGRESS    OF    INTERNATIONAL    LAW 

Hamburg  surrendered  to  the  English  three  Irish- 
men charged  with  sedition.  Upon  the  latter  occa- 
sion, Napoleon  wrote  to  the  Senate  a  letter  re- 
proaching them  with  having  violated  the  laws  of 
hospitality  in  a  fashion  which  would  have  made  the 
Nomad  tribes  of  the  desert  blush.  How  far  this 
outburst  was  due  to  love  of  liberty,  sympathy  with 
Ireland's  woes,  or  merely  dislike  of  perfidious 
Albion,  on  the  part  of  the  great  man,  is  a  question 
beyond  the  limits  assigned  to  this  chapter. 

The  obvious  reasons  for  extradition  in  cases  of 
political  offense  would  appear  to  have  been  the  im- 
portance attached  to  political  crime  compared  with 
ordinary  crime,  especially  in  a  society  which  was 
not  policed  as  ours  is,  as  well  as  the  absence  of  the 
diplomatic  and  judicial  machinery  making  extradi- 
tion an  easy  and  normal  proceeding. 

Underlying  these  reasons,  however,  there  was,  I 
suspect,  a  deeper  one.  The  political  theories  of  the 
Middle  Ages  seem  to  have  had  little  place  for  the 
right  of  revolution,  and  the  generally  accepted  im- 
perial theory  of  power  from  above  down,  left  small 
room  for  sympathy  with  insurrection. 

This,  perhaps,  explains  why  political  offenses 
were  looked  upon  as  the  most  serious  of  all,  and 
we  find  Grotius  saying:  statiim  publicum  tangent 
ant  eximiam  hahent  facinoris  atrocitateni. 

In  the  first  quarter  of  the  nineteenth  century,  we 

275 


CICRTAINTY    AND   JUSTICE 

find  treaties  expressly  providing  for  the  surrender 
of  those  who  had  l)een  engaged  in  treason  or  other 
acts  against  the  state.  This  was  so,  notably  in  the 
treaty    between    Austria.    Persia    and    Russia,    in 

1834- 

Political  conditions  in  Europe  had,  however,  so 
altered  that  the  change  in  public  sentiment  was 
bound  to  be  translated  into  the  domain  of  diplomacy 
and  law. 

France  was  the  first  country  to  embody  in  law 
and  in  treaties  the  principle  of  exemption  for 
political  ofifense.  The  revolutionary  origin  of  the 
July  monarchy,  together  with  the  well-settled 
principle  of  popular  sovereignty,  as  opposed  to 
monarchic  right,  explains  its  resolution  to  neither 
grant  nor  request  extradition  where  political  acts 
were  concerned,  and  led  it  to  conclude  various  ex- 
tradition conventions  containing  this  exception. 
The  principle  was  strongly  stated  and  acted  upon 
by  Lord  Palmerston  in  sustaining  Turkey's  refusal 
to  surrender  to  Austria  the  Hungarian  refugees  of 
1849.  Since  that  time  extradition  treaties  generally 
have  contained  the  political  exemption,  and  the 
general  principle  of  extradition  for  common  law 
crimes  alone  is  now  widely  admitted. 

The  reason  for  the  modern  rule  is  not  far  to 
seek.  Consequent  upon  the  French  Revolution  and 
the  growth   of   the   idea   of  popular   government, 

276 


i 


PROGRESS    OF    INTERNATIONAL    LAW 

honest  attempts  to  subvert  existing  regimes  were 
no  longer  looked  upon  as  morally  reprehensible ;  in 
some  cases,  indeed,  such  attempts  were  regarded 
rather  with  favor. 

Among  European  nations  there  is  now  a  fairly- 
general  consensus  as  to  what  constitutes  common 
law  crime.  Murder,  arson,  robbery,  embezzlement, 
and  even  theft  are  recognized  as  crimes  by  all  legal 
systems.  The  category  of  crime  is  widening,  and 
crimes  of  fraud  are  being  constantly  added  to  the 
list,  which,  at  first,  contained  little  more  than 
crimes  of  violence. 

As  to  political  offenses,  there  can  be  no  common 
consensus  of  right  and  wrong  among  nations  whose 
governments  are  founded  on  no  common  political 
principles.  Were  such  a  principle  recognized,  it  is 
quite  probable  that  political  acts  would  be  generally 
extraditable,  since  an  attempt  to  overthrow  the 
organization  of  a  whole  society  may  be,  and  gener- 
ally is,  fraught  with  infinitely  more  serious  con- 
sequences than  the  commission  of  an  offense  against 
any  one  individual. 

Thus  a  clause  permitting  extradition  for  treason, 
among  nations  having  governments  based  upon 
identical  principles  of  popular  sovereignty,  would 
be  logical  and  feasible.  In  fact,  such  is  the  case 
in  the  United  States,  in  which  the  Constitution, 
following  in   that   respect  a  similar  clause   in   the 

^17 


CKR'IAINTY    AND    JUSTICE 

Articles  of  Confederation,  provides  for  the  rendi- 
tion by  a  State  of  a  person  charged  in  any  State 
with  treason,  felony  or  other  crime,  etc. 

As,  however,  in  the  present  condition  of  the 
political  world,  such  a  situation  does  not  exist,  we 
are  brought  to  the  really  difficult  question :  what 
is  political  crime?  The  term  is  nowhere  defined 
in  the  treaties ;  whether  because  it  was  thought  too 
plain  by  some  to  require  definition,  I  do  not 
know.  Learned  jurists,  diplomats,  and  courts 
have  struggled  with  it,  without  hitting  upon  any 
yet  accepted  definition  of  the  term.  The  general 
practice  of  nations  has,  however,  shed  some 
light  upon  the  subject,  and  the  really  difficult 
question  can,  I  think,  now  be  segregated  and  treated 
alone. 

Acts  may  be  purely  political  acts,  attacks  upon 
the  government  through  the  press,  seditious 
speeches  or  proclamations,  etc.,  and  they  may  be 
punished  as  crimes,  but  as  extradition  treaties  gen- 
erally make  no  provision  for  these,  they  need  not 
here  be  discussed. 

The  real  difficulty  arises  from  mixed  crimes,  i.  e., 
those  which,  such  as  murder  or  arson,  are  punishable 
at  common  law,  but  w^hich  were  committed  from  a 
political  motive  rather  than  for  mere  gain  or  re- 
venge. Murder  and  robbery,  even  when  committed 
under  the  cloak  of  insurrection  may  well  be  treated 

278 


PROGRESS    OF    INTERNATIONAL    LAW 

as  common  crime ;  we  learn  on  the  highest  authority 
in  the  case  of  a  certain  Barabbas, 

"And  there  was  one  named  Barabbas,  which  lay 
bound  with  them  that  had  made  insurrection  with 
him,  who  had  committed  murder  in  the  insurrec- 
tion/'— Mark,  ch.  15,  v.  7. 

Ordinarily,  the  extradition  treaties  would  apply 
to  these  ofifenses,  and  it  is  necessary  for  the  prisoner 
charged  with  them  to  prove  that  the  acts  were 
political.  Practically  there  are  two  categories  of 
acts  otherwise  common  law  crimes,  which  might, 
by  reason  of  their  political  purpose  or  object,  be 
claimed  to  be  political  ofifenses : 

(a)  Isolated  acts  of  violence  not  done  as  part 
of  a  general  uprising,  insurrection  or  political  dis- 
turbance ; 

(b)  Acts  done  in  the  course  of  and  intended  to 
further  a  political  revolt  or  insurrection. 

The  desire  to  further  a  political  end  is  the  only 
element  dififerentiating  the  first  category  from  or- 
dinary crime.  I  shall  spend  no  time  on  that  class 
of  cases.  While  it  was  long  disputed  as  to  how 
far  the  assassination  of  a  ruler  could  be  classed  as 
a  political  ofifense,  international  usage,  growing 
sense  of  humanity,  horror  at  the  acts  of  such  men 

279 


CERTAINTY   AND   JUSTICE 

as  the  Phcenix  Park  murderers,  or  a  Booth  or 
Czolgolz,  have  caused  governments  generally  to 
treat  such  miscreants  as  guilty  of  atrocious  crime 
alike  repugnant  to  all  members  of  the  family  of 
nations. 

It  is  common  now  to  make  an  exception  in 
treaties,  exempting  from  the  category  of  political 
offense,  assassination  of  rulers.  This,  it  may  be 
suggested,  leads  to  the  inference  that  other  political 
personages  might  be  assassinated,  and  their  assas- 
sins treated  as  merely  political  offenders ;  suffice  it 
to  say,  that  a  different  view  has  been  generally 
taken  and  the  murderer  of  a  minister  or  magistrate 
is  surrendered  as  any  other  murderer.  This  was 
the  case  recently  in  Switzerland  when  a  magistrate 
was  killed  and  the  murderer  was  returned  to  Russia. 
Such  a  result  is  surely  sound.  If  an  officer  may 
be  killed  with  impunity  by  any  one  who  does  not 
approve  of  the  government,  why  not  equally  exempt 
the  individual  who  robs  the  government  to  procure 
funds  for  the  maintenance  of  a  political  party?  If 
political  murder,  why  not  political  theft?  Indeed, 
a  man  who  had  forged  a  will  to  get  a  succession, 
fled  to  Switzerland  and  when  his  extradition  was 
demanded  by  Russia  (1873),  claimed  that  he  had 
stolen  the  money  to  give  it  to  a  revolutionary 
society;  but  Swiss  sense  of  humor  was  aroused,  and 
his  defense  was  held  insufficient. 

280 


PROGRESS    OF    INTERNATIONAL    LAW 

I  think  it  may  be  fairly  said  without  further 
discussion  of  this  point,  that  the  consensus  of 
opinion  to-day  among  the  nations  is  to  treat  as 
a  murderer  any  person  who  kills  another  with  no 
other  justification  than  that  the  latter  held  an  office. 
The  lot  of  the  officeholder  is  not  now  so  superlatively 
happy  that  equal  justice  should  require  his  slayer 
to  take  rank  in  the  gallery  of  great  patriots. 

It  is  generally  admitted  that  anarchistic  crime 
does  not  fall  within  the  category  of  political  crime. 
All  nations  recognize  the  absolute  necessity  for 
some  kind  of  government.  Persons  whose  mental 
and  moral  deficiencies  lead  them  to  commit  acts 
of  violence  with  the  motive  of  destroying  organized 
society,  in  the  name  of  a  Utopian  dream,  and  of 
reducing  civilization  to  the  condition  of  the  primeval 
horde,  obtain  no  sympathy  from  the  nations.  An 
able  writer  has  tersely  characterized  this  type  as : 

"A  man  who  commits  murder  and  thefts  is  a  man 
who  has  not  the  endowment  of  feelings  which  con- 
stitute the  foundation  of  moral  sense  and  who  is, 
therefore,  an  abnormal  man.  Thus,  whenever,  an 
offense  is  perpetrated  which  presupposes,  like  mur- 
der, and  theft,  the  absence  of  the  minimum  of  pity 
and  probity  required  for  the  normality  of  the  moral 
type  of  man,  the  denomination  "political  crime"  be- 
comes misleading.  There  we  have  crime  pure  and 
simple." — Tosti,  Anarchistic  Crime,  Political  Sci- 
ence Quarterly,  Sept.,  i8pp. 

281 


CERTAINTY   AND   JUSTICE 

This  view  in  less  scientific  garb  is  found  in  the 
English  and  American  decisions. 

In  1894,  one  Meunier  attempted  to  blow  up  some 
barracks  in  Paris  and  when  arrested  in  England, 
in  an  extradition  proceeding,  pleaded  among  other 
things,  that  the  offense  charged  was  of  a  political 
character.    To  this  the  court  said : 

"It  appears  to  me  that  in  order  to  constitute  an 
offense  of  a  political  character,  there  must  be  two 
or  more  parties  in  the  state,  each  seeking  to  im- 
pose the  Government  of  their  own  choice  on  the 
other,  and  that  if  the  offense  is  committed  by  one 
side  or  the  other  in  pursuance  of  that  object,  it  is 
a  political  offense,  otherwise  not;  *  *  *  th^ 
part  of  anarchy  is  the  enemy  of  all  governments." — 
In  re  Meunier,  2  Q.  B.  D.  1894. 

Our  own  Supreme  Court  has  taken  substantially 
the  same  view.  The  anarchist  propagandist  Turner 
was  held  to  be  properly  and  constitutionally  ex- 
cluded under  the  immigration  law,  not  because  of 
the  commission  of  any  acts  of  violence,  but  because 
his  views  were  dangerous  as  incentives  to  violence. 
The  Chief  Justice  admirably  summarized  the  neces- 
sary limitations  upon  freedom  of  speech : 

"We  are  not  to  be  understood  as  depreciating  the 
vital  importance  of  freedom  of  speech,  and  of  the 
press  or  as  suggesting  limitations  on  the  spirit  of 
liberty,  in  itself  unconquerable,  but  this  case  does 

282 


PROGRESS    OF    INTERNATIONAL    LAW 

not  involve  those  considerations.  The  flaming 
brand  which  guards  the  realm  where  no  human 
government  is  needed  still  bars  the  entrance  and  as 
long  as  human  governments  endure  they  can  not  be 
denied  the  power  of  self-preservation,  as  that  ques- 
tion is  presented  here." — IVilliams  v.  Turner,  194 
U.  S.,  p.  279. 

The  Institut  de  Droit  International  (1892)  ad- 
mirably stated  the  principle  applicable  to  anarchistic 
crime : 

"Crimes  directed  to  uproot  the  fundamental  social 
institutions,  irrespective  of  national  divisions  or  of 
any  given  political  constitution,  or  form  of  govern- 
ment, are  not  to  be  considered  as  political  crimes." 

The  bearing  of  this  upon  the  programmes  of 
certain  political  associations  whose  aim  seems  to 
be  a  general  suppression  of  the  economic  basis 
of  all  present  societies  is  not  far  to  seek. 

There  remains,  however,  the  really  difficult  ques- 
tion of  an  ofTense  committed  in  the  course  of  some 
uprising  or  insurrection.  Of  this  class  of  cases 
there  is  yet  no  treaty  or  statutory  definition.  I 
can  find  only  one  case  in  which  the  question  was 
adequately  or  fully  discussed  and  a  definition  at- 
tempted. In  190 1  the  British  government  was 
asked  by  Switzerland  to  surrender  one  Castioni. 

283 


CERTAINTY    AND    JUSTICE 

It  appears  that  a  number  of  citi/.ens  in  one  of 
the  Swiss  cantons,  feeling  some  dissatisfaction  with 
the  government,  rather  than  resort  to  the  ballot 
box  for  redress,  seized  an  arsenal,  provided  them- 
selves with  arms,  attacked  the  municipal  palace,  dis- 
armed the  police,  imprisoned  some  members  of  the 
government,  and  established  a  provisional  govern- 
ment of  their  own.  During  the  course  of  the  at- 
tack, the  prisoner,  who  had  taken  part  in  the  move- 
ment throughout,  shot  with  a  revolver  and  killed 
an  officer  of  the  government.  He  was  arrested  in 
England,  committed  for  extradition  on  the  charge 
of  murder  and  sued  out  a  habeas  corpus.  His  de- 
fense was  political  crime.  The  court  of  Queen's 
Bench,  apparently  for  the  first  time  in  England, 
somewhat  elaborately  considered  the  question  and 
adopted  the  definition  found  in  Sir  James  Stephen's 
History  of  the  Criminal  Law  (Castioni,  i  Q.  B.  D. 
149,  1891),  as  the  clearest  definition  of  the  term 
"political  offense."  The  language  of  Mr.  Justice 
Stephen,  who  also  w^as  a  member  of  the  court  at 
the  time,  is  as  follows: 

"I  think,  therefore,  that  the  expression  in  the  ex- 
tradition act  ought  (unless  some  better  interpreta- 
tion of  it  can  be  suggested)  to  be  interpreted  to  mean 
that  fugitive  criminals  are  not  to  be  surrendered  for 
extradition  crimes  if  those  crimes  were  incidental  to 
and  formed  a  part  of  political  disturbances." 

284 


PROGRESS    OF    INTERNATIONAL    LAW 

Such  a  disturbance  was  found  to  have  existed 
and  the  prisoner's  act  to  have  been  one  of  its  logical 
incidents ;  hence  he  was  discharged  from  custody. 

The  court  also  discusses  a  suggested  definition 
by  Mr.  John  Stuart  Mill,  the  economist  and  philos- 
opher, which  he  had  formulated  while  a  member  of 
the  House  of  Commons : 

"Any  offense  committed  in  the  course  of  or  fur- 
thering of  civil  war,  insurrection,  or  political  com- 
motion." 

The  judges,  however,  thought  the  definition  of 
Mill  too  broad,  as  offenses  might  well  be  com- 
mitted in  the  course  of  a  revolution  and  yet  be  so 
separable  from  the  objects  of  that  revolution,  as 
to  be  properly  treated  as  mere  common  law  of- 
fenses. By  striking  out  the  words  "in  the  course 
of,"  the  definition  of  the  great  economist  becomes 
at  least  as  good  as  that  of  the  eminent  judge  and 
writer. 

Accepting  the  court's  definition  as  embodying  the 
general  view  entertained  on  the  subject  as  to  what 
constitutes  political  crime,  we  find  that  two  condi- 
tions must  concur  to  bring  the  act,  otherwise 
criminal,  within  the  exemption.  These  conditions 
are: 

(a)  the  existence  of  political  revolt  or  disturb- 
ance; 

285 


CERTAINTY   AND   JUSTICE 

(b)   the     fact    that    the    act    in    question     was 
incident  to  and  formed  a  part  of  such  disturbance. 

These  two  questions  are  of  an  entirely  distinct 
character. 

The  latter  is  one  purely  justiciable  in  its  nature : 
was  the  prisoner  affiliated  with  any  organization, 
did  he  act  under  orders,  and  similar  questions,  are 
matters  of  everyday  inquiry  in  our  courts.  On  the 
other  hand,  the  question  as  to  political  revolt  in  a 
foreign  country,  is  logically  and  properly  not  within 
the  jurisdiction  of  courts  at  all.  On  the  continent 
of  Europe  generally,  the  whole  question  of  extradi- 
tion is  decided  by  the  political  branch  of  the 
government,  and  it  has  been  claimed — and  justly — 
that  this  is  not  a  good  system,  it  being  preferable  to 
have  the  matter,  or  to  be  precise,  that  part  of  it 
which  is  admittedly  justiciable,  submitted  to  some  | 
tribunal,  as  is  done  in  England  and  the  United 
States;  thus  the  point  that  I  am  about  to  suggest 
arises  in  those  countries  alone. 

Our  Supreme  Court  has  repeatedly  determined 
that  matters  of  a  political  nature  are  exclusively  I 
within  the  determination  of  the  executive  branch  of 
the  government.  The  question  as  to  what  are  the 
boundaries  of  a  foreign  country,  or  what  is  the 
legitimate  government,  and  all  general  political  and 
geographical  facts  concerning  it,  are  matters  for  the 
executive  department,  rather  than  for  the  courts. 

286 


PROGRESS    OF    INTERNATIONAL    LAW 

The  courts  of  our  country  will  not  pass  judgment 
upon  the  acts  of  sovereign  states. 

"Every  sovereign  state  is  bound  to  respect  the  in- 
dependence of  every  other  sovereign  state,  and  the 
courts  of  one  country  will  not  sit  in  judgment  on 
the  acts  of  the  government  of  another,  done  within 
its  own  territory." — Underhill  v.  Hernandez,  i68 
U.  S.  250. 

Questions  as  to  the  existence  of  an  insurrection  or 
belligerency  are  matters  to  be  determined  by  the 
Department  of  State  and  the  courts  will  follow  their 
decision  in  such  matters,  as  was  said  by  the  Supreme 
Court  in  the  case  of  The  Three  Friends  (166  U.  S., 
I): 

''We  are  thus  judicially  informed  of  the  existence 
of  an  actual  conflict  of  arms  in  resistance  of  an  au- 
thority of  a  government  with  which  the  United 
States  are  on  terms  of  peace  and  amity,  although 
acknowledgment  of  the  insurgents  as  belligerents  by 
the  political  department  has  not  taken  place." 

The  reason  for  all  this  is  obvious.  The  internal 
politics  of  a  friendly  nation  are  not  matters  upon 
which  our  courts  can  or  should  properly  pass.  Aside 
from  the  unfortunate  diplomatic  consequences 
which  might  follow  from  such  action  on  the  part  of 
the  judiciary,  the  courts  are  not  equipped  with  the 
machinery  necessary  for  the  ascertainment  and  de- 

287 


CERTAINTY   AND   JUSTICE 

cision  of  such  questions.  Whether  the  repubhc  of 
Venezuela  is  at  peace  or  whether  rival  factions  are 
struggling  for  the  mastery,  is  not  f(;r  our  courts  to 
determine.  If  every  petty  judicial  officer  in  the 
United  States  to  whom  extradition  cases  are 
referred  is  justified  in  determining  whether  or  not 
a  revolt  or  revolution  existed  in  another  land,  we 
may  at  any  time  have  a  curious  and  embarrassing 
situation.  A  federal  commissioner  in  Chicago 
might  well  decide  that  revolution  was  flagrant  in 
the  Russian  Empire  and  that  organized  insurrection 
existed ;  while  some  State  court  in  New  York  might 
hold  that  there  was  no  disorder  sufficient  to  con- 
stitute a  condition  of  political  revolt.  This  illus- 
trates the  unwisdom  of  allow^ing  the  courts  to  decide 
political  questions.  It  is  true  as  appears  in  the 
Castioni  case,  just  cited,  that  the  English  courts 
(and  apparently  American  courts  likewise)  have 
treated  the  question  as  one  of  fact  to  be  judicially 
ascertained  and  determined ;  but  no  discussion  of 
the  wisdom  of  such  a  rule  has  taken  place,  and  it 
would  seem  to  me  entirely  competent  and  proper  for 
a  statute  of  the  United  States  to  enact  that  where 
the  question  of  complicity  in  an  insurrection  in  a 
foreign  country  is  used  as  a  defense  to  extradition. 
the  commissioner  or  judge  should  obtain  from  the 
State  Department  its  determination  as  to  the  exist- 
ence of  such  a  condition.     I  am  unable  to  perceive 

288 


PROGRESS    OF    INTERNATIONAL    LAW 

any   reason  in   logic  or   in   sound   sense   why   this 
should  not  be  done. 

It  is  probably  owing  to  the  very  few  cases  of  po- 
litical offense  that  have  so  far  come  before  the 
courts  that  the  attention  of  Congress  has  not  been 
called  to  the  advisability  of  such  an  amendment  to 
the  law.  But  the  possible  danger  to  our  interna- 
tional relations  of  leaving  such  questions  to  any  one 
of  the  committing  magistrates  throughout  the  coun- 
try, State  or  Federal,  is  obvious,  and  the  need  for 
precluding  it,  imminent.  Can  it  be  pleasing  to  a 
foreign  nation,  w^ith  whom  we  are  upon  the  best  of 
terms  of  friendship,  to  learn  that  a  commissioner  in 
extradition  has  found,  as  one  did  a  few  years  ago, 
that  the  whole  Russian  Empire,  including  the  dis- 
trict in  which  the  offenses  were  committed,  was  in 
a  state  of  revolution?  The  fact  that,  geographi- 
cally speaking,  only  a  small  portion  of  a  very  vast 
empire  was  affected  by  anything  in  the  nature  of 
revolt,  may  serve  to  palliate,  but  scarcely  to  wholly 
allay,  the  impression  created  in  the  country  re- 
ferred to.  Nor  would  the  converse  of  the  sug- 
gestion be  well  received  by  our  State  Department. 
Should  a  foreign  court  have  decided  that  some 
amiable  and  gentle  "night  riders,"  who  might  have 
fled  Kentucky  justice,  were  immune  from  extra- 
dition, because  the  American  nation  was  in  revo- 
lution, the  suggestion  would  jjrobably  meet  a  very 

289 


CERTAINTY   AND   JUSTICE 

cold  response  from  the  American  people.  It  is 
neither  wise  nor  just  to  charj^^e  the  judiciary  with 
the  responsibility  of  such  questions.  When  the 
decision  is  once  made,  if  it  discharges  the  prisoner, 
the  State  Department  has  no  further  control  over 
the  matter;  a  political  question  has  thus  been 
decided,  without  even  right  of  appeal  to  the  only 
branch  of  the  government  properly  equipped  to  de- 
termine it  and  a  possible  international  controversy 
set  on  foot  without  any  opportunity  afTorded  the 
Executive  to  avert  it. 

Such  questions,  indeed,  must  be  decided,  but  as 
the  responsibility  for  their  decision  ultimately  falls 
upon  the  government,  and  can  not  be  evaded  by 
delegating  it  to  a  commissioner,  would  it  not  be 
better  to  have  the  question  determined  in  the  first 
instance  definitely  and  finally  by  the  State  De- 
partment ? 

I  am  aware  that  not  only  have  English  and 
American  courts  treated  the  question  as  a  judicial 
one,  but  that  we  have  the  high  authority  of  Mr.  J. 
B.  Moore  in  favor  of  the  practice  (29  American 
Law  Review).  However,  he  treats  the  matter  as 
one  more  or  less  settled  by  usage  and  the  language 
of  the  British  extradition  treaty : 

"At  the  end,  extradition,  whatever  may  be  the 
character  of  the  offense,  is  a  political  act ;  but  prior 
to  that  stage,  it  is  both  in  the  United  States  and  in 

290 


PROGRESS    OF    INTERNATIONAL    LAW 

England  chiefly  a  judicial  proceeding,  in  which  the 
person  charged  is  entitled  to  be  set  at  liberty  when- 
ever he  has  shown  that  his  detention  is  not  war- 
ranted by  the  treaty." 

It  is  a  political  act,  and  it  is  only  the  occasion  for 
its  exercise  which  is  to  be  judicially  determined, 
because  that  occasion  is  the  proof  of  a  fact 
justiciable  in  its  nature;  but  when  the  nations  by 
treaty  agree  that  the  entrance  of  a  political  factor 
into  the  otherwise  justiciable  act  shall  exempt  it 
from  judicial  action,  the  existence  of  that  political 
factor  is  a  political  question  which  should  be  first 
determined  as  a  preliminary  jurisdictional   fact. 

As  the  cases  on  the  subject  are  few%  the  present 
practice  can  not  be  regarded  as  settled  by  a  course 
of  judicial  decisions;  nor  has  it  been  settled  as  the 
result  of  any  real  consideration  or  discussion.  I 
would  prefer  to  suggest  amelioration  in  the  law, 
rather  than  merely  recapitulate  the  precedents,  and 
I  have  no  hesitation  in  believing  that  both  England 
and  America  might  wisely  and  well  take  a  leaf 
from  the  European  book  in  regarding  the  existence 
of  insurrection  in  a  foreign  land  as  a  political  fact, 
while  Continental  Europe  might  well  copy  the 
English  and  American  practice  in  treating  the 
question  of  the  actual  criminality  of  the  accused  as 
an  ordinary  triable  fact. 

One  more  difficult  question  remains :  can  not 
291 


CERTAINTY    AND    JUSTICE 

some  further  limitation  be  placed  ujxjn  "polit- 
ical offense"  other  than  that  already  adopted  by  the 
courts  and  the  general  practice  of  nations,  in 
refusing  to  consider  as  political  crimes,  the  atroc- 
ities committed  by  anarchists  and  the  assassinations 
committed  by  individuals,  except  in  the  course  of 
civil  commotion  seriously  akin  to  war? 

Modern  invention  has  made  it  easy  for  a  few 
to  do  enormous  injury  to  life  and  property.  Under 
the  criminal  law  of  the  State  of  New  York,  three 
men  acting  together  are  sufficient  to  create  the  quasi- 
political  condition  of  "riot."  With  a  sufficiency  of 
dynamite  and  an  ardent  desire  to  overthrow  the 
hated  capitalistic  regime  in  favor  of  a  Utopian 
socialistic  republic,  much  might  be  accomplished  in 
the  way  of  wholesale  assassination.  Would  the 
law-abiding  citizens  of  the  Imperial  State  regard 
with  equanimity  a  decision  of  a  European  govern- 
ment that  the  three  men  so  acting  were  entitled  to 
a  safe  and  comfortable  asylum  in  Paris,  because, 
forsooth,  they  were  political  offenders  merely,  whom 
the  New  York  law  itself  had  characterized  as 
"rioters?"  Would  our  feelings  be  greatly  different 
if  the  number  of  those  who  had  taken  part  in  the 
riot  had  been  three  hundred  rather  than  three  ?  An 
extreme  case !  The  fallacy  of  mere  logicians.  I  am 
told.  Yet  would  not  such  a  case  fall  within  the 
English  definition  of  political  disturbance?     Must 

292 


PROGRESS    OF    INTERNATIONAL    LAW 

we    not    find    some    more    precise    and    workable 
definition? 

The  need  of  some  limitation  is  pretty  generally 
recognized.  For  instance  the  Swiss-Austrian  treaty 
of  1888  provides  that  political  refugees  may  be 
surrendered  although  they  are  also  charged  with 
political  crime,  provided  that  they  may  only  be 
prosecuted  for  the  common  law  crime.  The 
difficulty  with  this  system  is  that  it  leaves  to  the 
demanding  country  the  decision  of  whether  the  of- 
fenses are  political  or  of  common  law.  The  Swiss 
law  provides  also  that  extradition  will  be  accorded 
even  where  the  accused  alleges  a  political  object, 
provided  that  the  acts  constitute  mainly  a  common 
law  crime.  In  practice  it  may  not  always  be  easy 
to  disentangle  and  weigh  the  two  elements,  but  the 
distinction  seems  to  me  to  be  a  step  in  the  right 
direction,  and  its  establishment  is  no  more  difficult 
to  diplomatic  than  to  judicial  acumen.  It  would 
preclude  the  possibility  of  failure  to  extradite  in 
some  such  cases  as  that  mentioned  above,  where  the 
smallness  of  the  number,  and  the  utter  hopelessness 
of  the  cause,  rendered  the  act  really  a  crime  against 
the  common  law,  however  political  the  motives  of 
the  rioters  may  have  been.  The  fanatically  polit- 
ical and  social  motives  of  the  famous  John  Brown 
can  scarcely  be  questioned,  ^'cl  under  such  a  cri- 
terion as  this  Swiss-Austrian  treaty  proposes,  his 

293 


CERTAINTY   AND   JUSTICE 

attempt  to  incite  slave  insurrection  would  be  treated 
as  common  law  crime. 

We  find  an  apposite  illustration  in  our  new  pos- 
sessions. For  years  discontent  with  political  and 
economic  conditions  coupled  with  the  natural  in- 
stinct of  man  to  revert  to  primitive  barbarism  led,  in 
the  Philippine  Islands,  to  the  condition  called  La- 
dronism.  These  ladrones  were,  in  fact,  bandits 
and  robbers,  but  they  acted  in  organized  bands,  lived 
in  the  open  country  and  claimed  that  the  motive  of 
their  acts  was  political.  The  question  as  to  whether 
they  plundered  and  murdered  because  of  their  polit- 
ical principles  or  whether  the  latter  were  a  mere 
convenient  accessory  to  their  purely  predatory  in- 
stincts and  operations,  has  been  resolved  by  the 
statutes  in  force  in  the  Philippine  Islands  and  by 
the  decisions  of  the  Philippine  Supreme  Court  in 
several  cases.  (U.  S.  v.  de  Leon,  et  al.,  3  Phil. 
Rep.  p.  644.)  The  defendant  in  this  case  and  his 
associates  were  charged  with  highway  robbery  and 
brigandage,  and  their  principal  defense  seems  to 
have  been, 

"That  the  organization  had  for  its  object  to  at- 
tack and  contend  with  the  constabulary  forces  and 
municipal  police  of  the  towns  for  the  purpose  of  ap- 
propriating to  themselves  arms  and  ammunition,  and 
to  supply  themselves  for  the  purpose  of  forming 
an  army  for  a  future  insurrection;  in  other  words, 

294 


PROGRESS    OF    INTERNATIONAL    LAW 

that  the  band  was  of  a  political  nature  and  that  the 
appropriation  of  property  by  the  band  was  for  the 
purpose  of  supporting  them  in  attaining  political 
ends." 

We  thus  have  here  in  one  of  our  own  courts  a 
forceful  and  perfectly  clear  plea  of  political  crime. 
The  court  makes  short  work  of  the  contention,  for 
it  holds  as  follows : 

"In  several  cases  which  have  been  decided  by  this 
court  where  it  appeared  that  the  organization  of 
the  party  was  of  a  political  nature  and  that  the 
members  who  formed  such  party  or  band  committed 
acts  coming  within  the  definition  of  Act  No.  518 
against  the  highway  robbery  or  brigandage,  they 
may  be  properly  convicted  under  this  Act."  (p.  646.) 

Is  there  any  reason  or  logic  in  treating  one  of  our 
citizens  or  subjects  as  a  highway  robber  or  brigand, 
while  considering  a  foreigner  guilty  of  the  same 
acts  as  a  merely  political  offender,  innocent  of  or- 
dinary crime  and  outside  of  the  purview  of  extra- 
dition treaties? 

Should  some  of  these  ladrone  gentlemen,  feeling 
depressed  by  the  insalubrious  pro.ximity  of  the 
Philippine  constabulary  seek  refuge  in  Russia,  it  is 
not  improbable  that  the  United  States  might  seek 
their  extradition.  Should  that  ciunitry  apply  uur 
own  standards,  might  it  not  well  say  that  as  the 

295 


CKRTAINTY    AND   JUSTICE 

acts  in  question  were  committed  by  members  of  a 
band  in  chronic  hostility  to,  and  in  insurrection 
against,  the  government  of  the  United  States,  the 
offenses  were  of  a  pohtical  character,  and  immunity, 
at  least,  if  not  fame,  should  await  these  malignly 
so-called  robbers? 

A  rule  such  as  that  found  in  the  Swiss  law 
would  aid  in  the  solution  of  such  cases. 

A  case  decided  some  years  ago  by  the  State  De- 
partment, illustrates  the  necessity  for  some  revision 
of  the  commonly  accepted  American  view.  In  the 
case  of  Christian  Rudovitz,  a  Russian  subject  whose 
surrender  was  requested  by  Russia  in  accordance 
with  the  extradition  treaty,  the  facts,  as  stated  in 
the  language  of  the  Secretary  of  State  refusing  the 
surrender,  were: 

"That  on  the  night  of  January  3rd,  1906,  a  party 
of  some  sixteen  armed  men,  masked  and  disguised, 
came  to  the  little  village  of  Benen  on  the  estate  of 
Benen  and,  having  gained  entrance  into  certain 
houses  of  the  village,  killed  a  man  (Christian  Le- 
shinsky),  his  wife  (Trina  Leshinsky)  and  their 
married  daughter  (Wilhelmina  Kinze)  ;  that  they 
also  robbed  the  Kinze  w'oman  and  her  husband 
(Theodore  Kinze)  before  killing  her;  and  that  some 
time  during  the  occurrence  they  set  fire  to  the  house 
in  which  they  had  found  and  killed  the  mother, 
Trina.  It  does  not  appear  that  the  men  implicated 
in  the  affair  gave  at  the  time  any  reason   for  the 

296 


PROGRESS    OF    INTERNATIONAL    LAW 

killing  of  Christian  and  Trina  Leshinsky.  though 
they  are  said  to  have  declared  that  they  killed  the 
Kinze  woman  because  she  was  a  'spy. 


>    M 


The  defense  was  that  the  acts  were  done  under 
the  orders  of  and  by  members  of  the  Social  Demo- 
cratic Party.  Consequently  the  State  Department 
concluded : 

"In  view  of  these  facts  and  circumstances  the  de- 
partment after  a  mature  and  careful  consideration 
of  the  evidence  so  adduced  in  this  case,  finds  itself 
forced  to  the  conclusion  that  the  offenses  of  killing 
and  burning  with  which  the  accused  is  charged  are 
clearly  political  in  their  nature,  and  that  the  robbery 
committed  on  the  same  occasion  was  a  natural  in- 
cident to  executing  the  resolutions  of  the  revolu- 
tionary group  and  can  not  be  treated  as  a  separate 
offense,  certainly  not  as  a  separate  offense  by  this 
man  without  some  specific  identification  of  him  with 
that  particular  act,  and  of  this  there  is  no  evidence 
whatever.  Therefore,  none  of  these  offenses  is  such 
as  will  afford  a  proper  and  sufficient  ground  for  the 
extradition  of  the  accused  to  Russia.  Neither  the 
treaty  nor  the  law  of  the  United  States  limits  the 
protection  of  political  characters  to  acts  which  are 
approved  by  the  government  from  which  extradi- 
tion is  demanded.  However  much  the  government 
of  the  United  States  may  deplore  or  condemn  acts 
of  violence  done  in  the  commission  of  acts  for  a 
political  purpose,  however  unnecessary  or  unjusti- 
fied they  may  be  considered,  if  those  acts  were  in 

297 


CERTAINTY   AND   JUSTICE 

fact  done  in  the  execution  of  such  a  purpose,  there 
is  no  right  to  issue  a  warrant  of  extradition  there- 
for." 

This  decision  of  the  department  and  the  reason- 
ing here  adopted  would  seem  to  place  the  Philippine 
Ladronism  propaganda  in  the  domain  of  politics. 
If  this  be  the  law  and  the  United  States  is  forced  to 
refuse  extradition  for  acts  which  are  abhorrent  to 
rudimentary  notions  of  morality,  is  it  not  time  that 
some  change  be  made  in  the  law  ?  Are  we  to  be 
slaves  to  mere  legalism,  or  will  we  try  to  fulfill  the 
real  purpose  of  extradition,  viz. :  remove  from  this 
country  those  persons  whose  brutal  and  hideous 
conduct,  whatever  its  ultimate  causes  may  have 
been,  make  them  dangerous  and  unfit  members  of 
our  society? 

But  we  will  be  told  if  you  refuse  an  asylum  to 
a  Rudovitz,  you  may  be  forced  to  do  likewise  in 
the  case  of  a  Lafayette.  Not  at  all.  Is  legal  lan- 
guage so  feeble  that  we  can  find  no  rule  to  differen- 
tiate between  acts  which  excite  our  severest  con- 
demnation and  those  which  may  well  be  admired? 

The  problem  is  not  altogether  new,  and  other 
solutions  than  that  of  the  Swiss  law  have  been 
proposed. 

The  Institute  of  International  Law  in  its  session 
at  Oxford  (1880),  adopted  the  following  resolu- 
tions: 

298 


PROGRESS    OF    INTERNATIONAL    LAW 

"In  order  to  judge  the  acts  committed  during  a 
political  revolution,  or  an  insurrection,  or  a  civil 
war,  the  state  upon  which  the  demand  (of  extra- 
dition) is  made  must  decide  whether  it  would  be 
excusable  by  the  law  of  war"  ; 

and  at  the  same  session  passed  another  resolution 
which  may,  I  think,  be  said  to  be  declaratory  of  the 
present  general  practice : 

"Acts  which  unite  all  the  characteristics  of  com- 
mon law  crime  (murders,  arsons,  robberies),  should 
not  be  excepted  from  extradition  solely  by  reason  of 
the  political  intention  of  the  perpetrator." 

The  system  suggested  in  the  first  resolution  is 
called  that  of  war  usage. 

This  system  has  not  yet  met  with  any  general 
adoption.  The  Spanish  law,  however,  defines  and 
limits  political  crimes  as  follows : 

"All  attempts  committed  during  a  rebellion, 
against  the  public  authorities,  which  would  not  be 
punished,  under  existing  law,  if  they  had  been  done 
by  regular  armies,  or  persons  belonging  to  regular 
armies  in  time  of  war." 

This  proposed  system  has  been  criticized  on  the 
ground  that  war  usages  themselves  are  somewhat 
undetermined  and  that  in  civil  wars,  especially  in 
the    beginning,    it    is    impossible   to   observe    these 

299 


CERTAINTY   AND   JUSTICE 

usages.  It  has,  however,  the  great  virtue  of  dis- 
tinguishing between  the  means  and  methods  by 
which  a  political  result  may  be  obtained  and  in  so 
doing  is  in  accord  with  the  growing  sentiment  of 
the  age  to  which  murder  and  robbery  are  ever 
more  abhorrent.  It  is  a  distinctive  element  of 
recent  civilization  that  a  common  and  international 
accord  has  been  reached  to  mitigate  the  horrors  and 
even  the  severity  of  war,  and  to  condemn  in  its 
pursuit  or  under  its  compulsion  every  avoidable 
cruelty  and  every  wanton  or  needless  destruction. 
Is  it  too  much  to  expect  that  at  least  the  same 
measure  or  standard  shall  be  applied  to  the  acts  of 
revolutionists  or  political  malcontents,  and  that 
these  shall  not  be  permitted  or  encouraged  to  com- 
mit under  the  euphemism  of  political  offenses  acts 
which  the  common  accord  of  nations  classes  as 
crimes  against  life  or  property? 

A  somewhat  modified  form  of  this  doctrine  was 
presented  by  M.  Alberic  Robin  at  the  Geneva 
(1892)  Session  of  the  Institute  of  International 
Law  and  adopted.  Among  other  things,  it  provides 
that: 

"As  far  as  concerns  acts  committed  in  the  course 
of  an  insurrection  or  of  civil  war,  by  either  the  one 
or  the  other  of  the  parties  engaged  in  the  strife, 
and  committed  in  the  interest  of  the  cause,  extradi- 
tion can  only  be  granted  for  those  which  constitute 

300 


PROGRESS    OF    INTERNATIONAL    LAW 

barbarism  and  of  vandalism  forbidden  according  to 
the  laws  of  the  war  and  (extradition  shall  be 
granted)  only  when  the  civil  strife  has  ended."  ^ 

Under  such  a  system  our  State  Department 
would  no  longer  feel  under  the  necessity  of  offering 
apologies  for  having  refused  extradition  for  acts 
which  it  "deplores"  and  "condemns." 

In  conclusion,  then,  let  me  suggest  that  the  time 
has  arrived  to  modify  our  law  and  treaty  clauses  as 
to  political  crime.  Social  expediency,  broadening 
sentiments  of  humanity,  regard  for  the  morals  and 
welfare  of  our  own  citizens,  together  with  an 
appreciation  of  conditions  which  show  social  dis- 
content as  frequently  resulting  in  a-  form  closely 
akin  to  anarchy,  would  seem  to  demand  that  some 
limitations  be  placed  upon  the  vague  term  "political 
offense." 

These  limitations  upon  the  usual  treaty  clause 
might  be  in  substance  as  follows : 

Political  offense  shall  not  be  deemed  to  include 
either 

(i)  individual  acts  of  violence  containing  all 
the  elements  of  common  law  crime,  even  though 
perpetrated  from  a  political  motive,  or  with  a  polit- 
ical intent  or  design; 

(2)   such  acts  when  committed  from  motives  of 

'See  Pandectes  Frangais  Art.  Extradition,  vol.  31,  430. 
301 


CKR'l'AINTY    AND    JUSTICE 

or  to  promote  anarchy  or  the  dissokition  of  all 
political  organization ; 

(3)  or  acts  conimitted  during  an  insurrection 
of  civil  war  which  constitute  odious  acts  of  bar- 
barism forbidden  according  to  the  laws  of  war. 

And  further,  I  should  suggest  an  amendment  to 
our  extradition  act  requiring  that  the  fact  of  the 
existence  of  insurrection  in  a  foreign  country,  when 
raised  as  a  defense  to  a  demand  for  extradition  be 
determined  in  the  first  instance  by  the  Department 
of  State. 

Before  closing,  one  word  as  to  right  of  asylum. 
Much  has  been  said  in  public  discussions  and  in  the 
press  about  asylum.  The  fact  that  the  doctrine 
is  unknown  to  international  law  and  has  never 
been  recognized  will  not,  in  all  probability,  prevent 
our  hearing  much  about  this  sacred  right  in  future. 
It  may  be  well  to  bear  in  mind,  however,  what  our 
leading  international  lawyer  and  publicist,  Pro- 
fessor Moore,  has  said  on  the  subject :  ' 

"It  has  been  the  policy  of  the  United  States  to 
discourage  the  granting  of  asylum,  not  only  because 
it  has  no  foundation  in  international  law,  but  be- 
cause it  has  often  been  found  to  involve  an  unwel- 
come interference  in  the  affairs  of  other  nations,  and 
to  be  injurious  both  to  national  interests  and  to  in- 
ternational relations." — John  Bassett  Moore  XXIV 
American  Law  Review,  "The  case  of  the  Salva- 
dorean Refugees." 

302 


XI 


THE  CRISIS  OF  THE  LAW;  PROFESSIONAL 
INCOMPETENCY 

'"T^HE  bar  can  no  longer  afford  to  blink  the 
"*'  fact  that  "the  law"  has  become  thoroughly- 
unpopular.  It  may  be  that  this  unpopularity 
is  in  whole  or  in  great  part  undeserved,  but, 
in  any  event,  we  are  not  justified  in  refusing 
to  examine  into  the  question  whether  this  be  so 
or  not.  Popularity  is  no  sure  index  of  right 
or  wrong;  there  is  no  divine  justice  in  the 
judgment  of  a  mob,  and  the  opinion  of  the 
man  in  the  street  upon  so  big  a  matter  as  the  Law 
may  be  of  little  moment;  but  when  in  our  com- 
munity a  feeling  is  widespread,  intense  and  of  long 
duration,  it  is  not  safe  to  refuse  to  examine  into  its 
causes.  The  course  of  the  Reformation  might  have 
been  substantially  modified  and  the  excesses  of  the 
French  Revolution  wholly  avoided  if  the  govern- 
ing classes  had  not  been  quite  so  complacently  un- 
heeding of  popular  discontent. 

If  the  "Law"  stand  arraigned  at  the  Bar  of  Pub- 
lic Opinion,  the  mere  assertion  by  the  agitator  that 

303 


CERTAINTY   AND   JUSTICE 

this  is  due  to  the  rapacity  or  incompetency  of  the 
lawyer  class  has  in  it  little  value  as  an  intelligent 
explanation  and  is  quite  as  futile  as  the  answer  of 
the  conservative  that :  "No  rogue  e'er  felt  the 
halter  draw  with  good  opinion  of  the  law."  In 
such  a  debate  we  quickly  reach  an  impasse  and 
leave  the  question  to  be  solved  by  those  mystic 
forces  which  govern  human  affairs  and  which  may 
solve  it  in  a  way  equally  contrary  to  the  theories 
both  of  the  agitator  and  of  the  conservative. 

The  attack  upon  the  legal  profession  is  no  nov- 
elty. The  somewhat  radical  proposition  that  the 
lawyers  be  guillotined  was  modified  in  the  French 
National  Convention  into  the  more  conservative 
measure  of  merely  suppressing  the  profession.  A 
short  experience,  however,  demonstrated  that  this 
measure  was  not  calculated  to  bring  about  the  Mil- 
lennium and  that  the  slow  processes  of  blind  justice 
and  the  droning  disputes  of  the  court  room  were 
on  the  whole  less  detrimental  to  the  welfare  of  the 
community  than  "settlements"  in  the  street. 

No  rough  and  ready  explanation  of  the  causes 
of  the  discontent  with  the  law  will  suffice.  What 
then  are  the  real  causes?  To  specify  them  all  is 
probably  impossible.  The  main  ones  are  perhaps 
clear  enough,  however. 

First,  there  are  general  causes  of  discontent 
throughout  the  community  which  it  is  not  neces- 

304 


THE    CRISIS    OF   THE    LAW 

sary  to  deal  with  here.  Specifically,  however,  there 
are  two  main  causes  which  largely  account  for  the 
popular  distrust  of  the  law  and  the  lawyers.  One 
of  these  is  the  fact,  that  the  law  of  to-day  and 
especially  the  judge-made  law  is  somewhat  out  of 
harmony  with  real  life.  Law  is,  of  course,  mainly 
a  resultant  or  a  crystallization  of  sufficiently  long 
continued  general  opinion  in  each  community.  In 
this  last  generation  tremendous  economic  changes 
have  so  modified  actual  human  relations  that  the 
American  law  of  to-day  reflects  the  views  of  the 
dead  rather  than  those  of  the  living  and  is  in  many 
respects  far  behind  that  of  England,  France  or 
Germany.  Individually  progressive,  we  Americans 
are  collectively  very  backward.  As  yet  there  has  not 
been  sufficient  time  for  these  new  relations  to  find 
adequate  expression  in  the  law  and  the  classes  who 
profit  by  such  inadequacy,  reinforced  by  that  great 
majority  of  persons  of  naturally  conservative  in- 
stinct w^ho  love  a  rule  merely  because  it  is  old, 
regardless  of  the  circumstances  under  which  it 
originally  arose  and  which  made  it  useful,  have 
been  able  to  retard  a  necessary  and  inevitable  ad- 
justment. The  fear  that  we  may  move  too  fast 
ignores  the  ineradicable  tendency  to  follow  custom 
which  keeps  the  new  generation  from  departing 
from  the  ways  of  their  ancestors  and  which,  health- 
ful and  necessary  up  to  a  certain  point,  means,  when 

305 


CERTAINTY   AND   JUSTICE 

untempered  by  radicalism,  social  stagnation.  The 
instinct  which  made  Chinese  civilization  stationary 
is  not  the  exception  but  the  rule ;  the  opposite  ten- 
dency is  sufficiently  exceptional  to  cause  us  little 
real  apprehension. 

It  has  been  well  said  that  the  sense  of  equity  of 
one  generation  tends  to  become  the  law  of  the  next, 
but  this  gradual  adjustment  of  law  to  justice  has 
rarely  seemed  so  slow  a  process  as  in  recent  years, 
because  of  the  speed  with  which  social  and  economic 
transformations  have  taken  place. 

With  all  this,  however,  I  have  here  little  con- 
cern other  than  to  indicate  that  it  is  one  of  the  two 
main  causes  of  dissatisfaction. 

There  is,  however,  another  and  perhaps  even 
more  potent  cause  of  discontent,  which  is  not  of 
yesterday  and  which  has  little  or  nothing  to  do  with 
theories  of  government,  but  relates  solely  and  sim- 
ply to  the  ordinary  administration  of  justice  be- 
tween man  and  man  in  the  courts  of  Common  Law. 

The  ordinary  individual  is  either  in  some  bread 
winning  business  or  owns  some  property  or  both. 
At  any  time  he  may  feel  that  his  personal  or  prop- 
erty rights  have  been  infringed.  Naturally,  and  in 
an  ideal  community,  he  would  seek  the  advice  of 
one  skilled  in  the  law  and  would  place  himself  under 
the  protecting  cegis  of  justice  for  a  full  vindication 
of  his  rights.     In  practice,  however,  it  is  notorious 

306 


THE    CRISIS    OF   THE    LAW 

that  the  ordinary  individual,  unless  he  is  wealthy, 
idle  or  temperamentally  litigious,  shuns  the  courts. 
This  is  mainly  because  of  the  great  expense  and 
delay  which  cause  him  to  believe  that  he  had  better 
forego  (especially  if  he  has  ever  been  in  a  lawsuit) 
the  attempt  to  vindicate  his  rights,  rather  than  sub- 
ject himself  to  a  procedure  which  he  does  not 
understand  and  to  be  engaged  in  litigation,  the  end 
of  which  he  can  neither  foresee  nor  foretell.  He 
thus  contents  himself  with  making  the  best  settle- 
ment he  can,  if  any,  and  becoming  an  embittered 
critic  of  the  law^ 

This  is  not  a  new  evil.  In  the  first  half  of  the 
nineteenth  century  in  England,  it  was  said  that  no 
man  in  middle  life  beginning  a  suit  in  equity  could 
possibly  hope  to  live  to  see  the  end,  and  yet  in  the 
English  law  courts  matters  are  now  disposed  of 
with  an  expedition,  and  a  substantial  justice  which 
put  us  so-called  progressive  Americans  to  shame. 
Why  is  it? 

Law  reform  is  no  new  cry.  In  this  State  it 
has  been  mooted,  agitated  and  enacted  almost 
constantly  for  half  a  century  and  yet  in  1904 
the  Commission  appointed  by  the  Governor,  pur- 
suant to  Act  of  the  Legislature,  reported  after 
a  careful  examination  of  the  conditions  of  the 
Calendars  in  New  York  and  Kings  County 
that : 

307 


CERTAINTY   AND   JUSTICE 

"The  situation  thus  disclosed  is  of  the  gravest 
character.  The  authority  of  the  courts  is  seriously 
impaired  by  their  inability  to  render  speedy  justice, 
and  they  must  accordingly  suffer  a  loss  of  respect 
from  the  people  who  maintain  them.  'Justice  de- 
layed is  justice  denied,'  is  a  maxim  of  universal  ac- 
ceptation, and  the  indifference  of  any  people  to  in- 
justice marks  the  period  of  their  decadence." 

As  though  to  emphasize  the  seriousness  of  the 
situation  and  the  fact  that  these  last  sentences  were 
penned  in  the  full  light  of  past  history  the  words 
of  Gibbon  are  quoted  by  the  Commission : 

"By  these  dilatory  and  expensive  proceedings  the 
wealthy  pleader  obtains  a  more  certain  advantage 
than  he  could  hope  from  the  accidental  corruption 
of  a  judge." 

These  are  not  the  views  of  persons  ignorant  or 
careless  of  the  law,  nor  of  orators  on  the  hustings 
carried  away  by  the  applause  of  unsuccessful  liti- 
gants, but  the  calm  statement  of  a  Commission  of 
seven  eminent  lawyers  two  of  them  ex-presidents  of 
the  Bar  Association. 

Yet,  we  are  constantly  told  that  what  we  need  is 
more  law  reform.  The  books  must  be  cumbered 
with  more  statutes,  or  statutes  already  passed  dur- 
ing periods  of  over-active  law  reform  endeavor,  are 
to  be  repealed.    If  this  be  true,  the  situation  is  dis- 

308 


THE    CRISIS    OF   THE    LAW 

couraging.  Sixty  years  of  legislation  are  to  go  for 
naught  and  we  must  begin  anew. 

It  is,  of  course,  true  that  our  New  York  pro- 
cedure is  cumbersome,  our  code  unwieldy  and  il- 
logical. Every  student  of  law  knows  that.  It 
compares  most  unfavorably  with  procedure  in 
many  of  our  sister  States  where,  as  in  England, 
most  matters  of  practice  and  procedure  are  left  to 
rules  of  court,  few,  simple  and  elastic. 

Codification  was  once  supposed  to  be  the  panacea, 
but  so  far  codification  has  failed  of  its  purpose.  It 
must  be  admitted,  however,  that  certain  law  re- 
forms, especially  in  the  simplification  of  procedure, 
would  be  useful,  but  I  do  not  believe  that  generally 
speaking,  the  main  abuses  would  be  substantially 
affected. 

The  truth  is  that  the  fault  is  not  inherent  in  our 
system  of  law.  The  Common  Law  is  flexible, 
adaptable  and  not  necessarily  more  cumbersome, 
slow,  ineffective  or  expensive  than  the  Civil  Law 
System.  Experience  elsewhere  has  shown  that  it 
is  compatible  with  the  speedy  determination  of  cases 
and  substantial  justice  in  ordinary  matters.  It  is 
not  pleasant  to  criticize  one's  own  profession.  It 
is  still  more  painful  to  advert  to  the  shortcomings 
of  the  judiciary.  On  the  whole,  in  the  United 
States,  the  bench  and  the  bar  have  stood  for  in- 
dividual  rights   and    for  justice   and   have   behind 

309 


CERTAINTY    AND   JUSTICE 

tliem  a  great  historic  record.  The  government  of 
the  United  States  has  been  one  of  lawyers  rather 
than  one  of  warriors,  or  of  ecclesiastics,  and  has 
surely  compared  well  with  any  that  we  know  of  in 
history.  If  then,  we  criticize  the  present  condition 
of  the  profession  and  the  judiciary,  it  is  solely  with 
a  desire  to  indicate  the  real  causes  that  have  injured 
the  influence  of  the  profession. 

To  my  mind,  the  general  unpopularity,  not  to  say 
disrepute,  into  which  the  law,  and  thereby  the  ad- 
ministration of  justice  in  many  parts  of  the  country, 
has  fallen,  is  due  in  large  measure  to  incompetency 
both  at  the  bar  and  on  the  bench. 

Let  me  say  at  the  outset  that  I  believe  our  judges 
generally,  both  in  New  York  and  elsewhere,  to  be 
honest,  industrious  and  anxious  to  be  impartial,  but 
in  too  many  cases  the  necessary  temperament,  gen- 
eral education,  previous  experience,  and  technical 
skill  are  lacking  in  the  courts,  ow:ing  to  the  fact 
that  the  judicial  positions  are  political  rewards 
rather  than  w^ell  earned  distinctions  due  to  pro- 
fessional and  civil  service. 

The  functions  of  a  judge  are  not  difficult.  A  fair 
professional  training,  sound  common  sense  and  wil- 
lingness to  work  are  sufficient  to  make  a  judge  effi- 
cient and  esteemed.  It  must  be  remembered  that 
the  hard  work  is  done  by  counsel.  The  judge  who 
is  attentive  and  is  assisted  by  able  counsel  hears 

310 


THE    CRISIS    OF   THE    LAW 

both  sides  of  every  question  thoroughly  canvassed, 
the  authorities  in  support  of  every  proposition  are 
adduced  and  analyzed  and  it  is  only  necessary  for 
him  to  decide  between  the  conflicting  views. 

The  judge,  however,  is  much  handicapped  when 
not  assisted  by  able  counsel ;  especially  in  the  City 
of  New  York  with  the  tremendously  crowded  cal- 
endars, it  is  almost  impossible,  humanly  speaking, 
for  the  judge  himself  to  examine  the  authorities 
cited  or  to  do  much  more  than  to  read  the  briefs 
of  counsel  or  hear  their  arguments.  Where  the  case 
is  complicated  and  the  counsel  inefficient,  the  judge 
is  doubly  burdened.  Where  a  judge  gets  inade- 
quate assistance  from  the  bar  he  must  be  of  more 
than  ordinary  ability  not  to  fall  constantly  into 
error. 

To  those  who  have  watched  the  lawyers  coming 
to  the  bar  in  these  later  years,  the  ignorance  and 
incompetency  displayed  by  very  many  are  appal- 
ling. Among  them  are  many  evidently  very  intel- 
ligent and  well-equipped,  but  it  is  fair  to  say  that 
a  very  large  percentage,  possibly  considerably  more 
than  half  who  enter  the  New  York  City  Bar  are 
unfitted  to  enter  any  learned  profession.  The  an- 
swers made  by  many  of  them  to  questions  of 
examiners  indicated  that  they  had  no  grasp  of  the 
real  duties  or  functions  of  a  lawyer,  no  idea  of  tiic 
relations  existing  between  law  and  morals,  and  that 

3" 


CERTAINTY    AND    JUSTICE 

they  had  simply  mcniorizcd  sufficient  misunderstood 
matter  to  cnahlc  tlicm  to  pass  an  examination.  The 
spectacle  is  little  short  of  lamentable,  and  the  arti- 
ficial character  of  the  intellectual  tests  required  was 
illustrated  by  the  rather  amusing  feature  that  fre- 
quently some  of  the  more  intelligent  and  better- 
equipped  young  men  coming  from  one  of  the  great 
university  law  schools  of  the  country  had  not  been 
able  to  pass  the  examination  until  after  several 
trials. 

The  admission  of  a  large  number  of  unlearned, 
unlettered  and  utterly  untrained  young  lawyers  with 
no  c:sprit  de  corps  and  little  regard  for  the  traditions 
of  the  profession  has  been  having  and  will  con- 
tinue to  have  a  deleterious  ejfifect  upon  the  admin- 
istration of  justice. 

This  condition  is  generally  recognized  in  the 
large  cities  at  least.  The  appellate  courts  are  en- 
deavoring to  make  admission  more  difficult ;  more 
stringent  rules  are  being  enacted  and  advocated ; 
more  complete  courses  of  study  and  more  adequate 
tests  are  constantly  being  required.  I  believe  that 
in  the  respect  of  professional  incompetency,  we 
have  seen  the  nadir.  There  is  now  a  general  move- 
ment at  the  bar  to  better  this  condition ;  it  will  re- 
quire some  years,  but  with  the  co-operation  of  pub- 
lic opinion  and  the  assistance  of  the  bench,  much 
can  be  done.    It  is  of  more  importance  than  legisla- 

312 


THE    CRISIS    OF   THE    LAW 

tive  reform,  which  is  of  very  little  value  when  put 
into  practice  by  men  without  character  or  training. 

It  is  absurd  to  charge  the  deficiencies  of  the  Code 
of  Civil  Procedure  with  the  delay  now  encountered 
in  our  courts  of  justice.  If  some  improvement  has 
been  made  in  New  York  since  1904  when  the  Com- 
mission on  the  Law's  Delays  reported,  it  is  of  a 
slight  character  and  the  bench  has  been  consider- 
ably increased  since  that  period.  The  delay  is  due 
to  the  fact,  first,  that  trials  take  at  least  twice 
as  long  as  they  reasonably  should.  Our  great 
criminal  trials  here  have  become  a  laughing  stock. 
It  sometimes  takes  more  days  to  impanel  a  New 
York  jury  in  a  great  criminal  case  than  it  takes 
hours  in  New  Jersey  or  probably  minutes  in  Eng- 
land. The  courts  do  not  dispose  of  one-half  of  the 
number  of  cases  that  they  should  in  the  time  al- 
lotted to  them. 

Again,  ignorance  of  the  technicalities  of  the  law 
results  in  a  great  number  of  reversals  and  of  new 
trials,  often  in  cases  in  which  the  result  reached 
was  just,  but  the  methods  used  were  subversive  of 
precedent  and  of  the  orderly  administration  of 
justice.  Enormous  numbers  of  practice  motions 
are  made  which  never  would  have  to  be  made  if 
lawyers  knew  how  to  state  their  cause  of  action 
and  draw  their  papers.  Nearly  all  of  these  mo- 
tions might  be   decided    from   the   bench,    if   they 

313 


CERTAINTY    AND   JUSTICE 

were  properly  presented  by  counsel  and  thoroughly 
understood  by  judges.  The  practice  of  holding 
these  trivial  motions  for  weeks,  sometimes  for 
months,  is  vicious. 

Mr.  Bryce  in  his  biographical  sketch  of  Sir 
George  Jessel,  late  Master  of  the  Rolls,  relates  that 
during  his  long  and  honorable  career,  upon  only 
two  occasions  did  he  fail  to  decide  the  matter  pre- 
sented to  him  at  the  termination  of  the  argument. 
And,  yet,  in  New  York  City,  trifling  practice  mo- 
tions for  amending  answers,  striking  out  portions 
of  pleadings,  making  matters  more  definite  and 
certain,  etc.,  are  taken  under  advisement  for  an 
indefinite  time.  The  public  naturally  believe  all 
this  due  to  legal  technicality  and  think  the  law  a 
mere  Chinese  puzzle  enacted  by  lawyers  for  the 
benefit  of  lawyers.  The  real  fact  being  that  had 
the  people  always  been  able  to  elect  competent 
judges,  and  were  clients  represented  by  trained 
lawyers,  a  way  could  almost  always  be  found  to 
do  justice  without  violence  to  those  rules  and 
precedents  which  are  necessary  in  order  to  secure 
some  degree  of  certainty  and  uniformity. 
^.  Incompetency  at  the  bar  is  due  in  large  measure 
to  the  great  increase  of  the  population  that  has 
taken  place  in  our  cities  in  a  short  time  and  the 
inadequacy  of  the  rules  for  admission,  which,  when 
the  bar  was  small  and  social  conditions  different, 

314 


THE    CRISIS    OF   THE    LAW 

were  sufficient  and  may  be  sufficient  now  in  the 
rural  comnuinities  where  the  lawyers  are  well- 
known  to  the  people  and  where  the  court  house 
is  a  sort  of  social  center.  In  those  communi- 
ties I  believe  less  criticism  of  the  law  will  be 
found. 

The  very  real  difficulty  with  the  courts  in  many 
of  the  great  cities  of  the  Union,  is  the  fact  that  the 
judiciary  is  in  politics.  It  is  obvious  that  there 
should  be  no  partisan  politics  in  the  selection  of 
judges,  but  as  a  matter  of  fact,  judgeships  have 
become  among  the  best  and  richest  political  plums 
for  the  party  machine.  In  the  rural  communities 
where  the  lawyers  are  personally  known  to  voters, 
the  system  of  popular  election  works  fairly  well  as 
a  selective  system,  and  leading  lawyers  and  citizens 
are  frequently  chosen,  but  in  our  great  city  of  New 
York,  any  nominee  of  the  dominant  political  party 
almost  invariably  goes  through,  save  when  other  is- 
sues cause  a  political  revolution. 

A  few  years  ago  in  New  York,  the  bar  attempted 
the  experiment  of  independently  nominating  several 
highly  reputable,  respected  and  able  lawyers  for 
the  bench  and  the  number  of  votes  which  they  polled 
was  so  ridiculously  small  as  to  indicate  the  belief 
that  the  community  could  not  possibly  have  under- 
stood what  was  really  at  issue. 

Political  contributions  have  been  a  source  of  evil 

315 


CERTAINTY   AND   JUSTICE 

and  corruption,  but  they  are  peculiarly  so  when  con- 
nected with  judicial  positions. 

The  Commission  on  the  Law's  Delays  heretofore 
referred  to,  recommended  among  other  things: 

"the  enactment  of  a  law  which  shall  prohibit  under 
severe  penalties  the  payment  of  any  sum  of  money 
by  a  person  who  is  a  candidate  or  shall  become  a 
candidate  for  a  judicial  office,  either  in  advance  of 
his  nomination  or  thereafter  as  a  contributor  to  the 
political  party,  a  person  or  persons  nominating  him, 
either  directly  or  indirectly,  or  the  reimbursement  by 
such  person  of  any  other  person  or  organization 
for  moneys  so  paid  or  advanced ;  and  an  equally 
severe  prohibition  against  receiving  such  moneys  or 
contributions," 

and  they  stated  among  other  things  that  they  under- 
stood 

"public  opinion  on  the  subject  to  be  quite  well  crys- 
tallized." 

The  Corrupt  Practices  Act  (Election  Law,  Sec. 
540,  et  seq.)  endeavors  evidently  to  carry  out  this 
recommendation,  although  not  applying  specifically 
to  the  judiciary,  but  Sec.  780  of  the  Penal  Law 
prohibits  any  candidate  for  judicial  office  from  di- 
rectly or  indirectly  making  any  contribution  of 
money.  The  law  is  one,  however,  that  can  be 
easily  evaded.     The  contributions  may  be  made  by 

316 


THE    CRISIS    OF   THE    LAW 

a  candidate's  friends  even  without  the  candidate's 
knowledge,  or  at  least  without  his  active  partici- 
pation in  securing  or  paying  the  money. 

I  doubt  whether  this  evil  can  be  eradicated  by 
law.  That  it  should  be  eliminated,  that  it  is  one 
of  the  causes  of  the  inefficiency  and  incompetency, 
sometimes  found  upon  our  1)ench.  cannot  be 
doubted ;  that  it  may  upon  occasion  come  peril- 
ously near  to  the  purchase  of  the  office  is  evident. 

We  presume  that  this  system  has  no  open  parti- 
sans and  that  judicial  positions  will  never  become, 
as  they  once  were,  matters  of  property.  Even  down 
to  the  French  Revolution  magistracies  were  hered- 
itary and  alienable  as  is  the  office  of  "avoue"  in 
France  to  the  present  day,  but  this  was  a  regulated, 
recognized  system  and  certain  tests  were  applied  to 
the  individual  holding  the  office  before  he  could 
enter  upon  his  property.  Solicitors  had  a  property 
right  in  their  offices  in  Porto  Rico  down  to  the 
time  of  the  American  occupation  and  the  Supreme 
Court  of  the  United  States  has  recently  decided 
that  these  positions  ceased  with  the  relinquishment 
of  the  Spanish  sovereignty  and  that  the  unfor- 
tunate incumbents  of  these  comfortable  monopolies 
had  no  claim  against  the  United  States.  Alvarcc  y 
Sanchec  v.  U.  S.  (216  U.  S..  167). 

We  Americans,  however,  arc  peculiarly  sensitive 
on  the  subject  of  the  judiciary.     On  the  whole  our 

3«7 


CERTAINTY    AND   JUSTICE 

-judges  are  upright  men.  No  such  scandals  as  dis- 
graced the  Tweed  regime  have  arisen  of  later  years, 
but  the  political  conditions,  the  domination  of  the 
machine,  the  tremendous  electorates  in  our  leading 
cities  too  vast  to  know  the  candidates,  even  by 
name,  have  not  infrequently  brought  upon  the 
bench  well-meaning,  mediocre  men,  without  the  in- 
tellectual grasp,  general  education  or  the  profes- 
sional training  necessary  to  make  effective  judges. 
Coupling  with  this  the  fact  that  we  have  no  barrister 
system,  that  our  system  of  admission  to  the  bar  is 
still  inadequate,  that  the  prizes  of  commercial  and 
ofifiice  practice  have  become,  owing  to  industrial  de- 
velopment, much  greater  than  those  of  the  forum, 
and  that  thus  the  judges  get  inadequate  assistance 
from  the  bar,  we  have,  I  think,  an  explanation 
of  much  of  the  delay  and  expense  incident  to  the 
dangerous  venture  of  launching  a  law  suit  in  so 
many  of  our  States  and  cities. 

As  usual,  it  is  easier  to  state  the  difficulty,  which 
after  all  is  thoroughly  known  at  the  bar,  than  to 
indicate  a  remedy.  I  have  little  confidence  in  stat- 
utory remedies.  The  great  English  legal  reforms 
initiated  by  Jeremy  Bentham  were  brought  about 
under  a  pressure  of  public  opinion  which  was  ir- 
resistible and  which  had  determined  that  the  evils 
burdening  the  administration  of  justice  must  dis- 
appear.    They  too,  were  long  in  coming. 

318 


THE    CRISIS   OF   THE    LAW 

We  must  insist  upon  a  higher  standard  of  char- 
acter and  legal  education  for  admission.  This  will 
check  much  of  the  evil  at  its  very  source.  Possibly 
at  the  next  constitutional  convention  we  may  so 
amend  our  State  constitution  as  to  require  qualifica- 
tions, other  than  that  of  being  merely  a  member  of 
the  bar,  for  eligibility  to  the  bench.  This  is  a  sub- 
ject which  should  be  discussed  by  lawyers  and  an 
attempt  made  to  formulate  some  specific  measures. 

As  to  the  judges,  the  elective  system  is  probably 
evil,  but  has  come  to  stay.  It  is  doubtful  if  it  can 
be  changed.  There  then  remains  no  remedy  save 
to  impress  upon  tlie  community  that  the  evils  of  the 
law  are  largely  of  their  own  making,  that  if  they 
exerted  themselves  to  elect  able  and  competent  men, 
regardless  of  political  considerations,  much  of  their 
cause  for  complaint  would  be  removed.  The 
Mayor,  the  Aldermen,  or  even  the  Governor  are  of 
comparative  insignificance  as  compared  with  the 
courts.  If  the  citizen  is  assured  that  his  constitu- 
tional, personal  and  property  rights  will  be  wisely 
safeguarded  and  tliat  adetjuate  and  speedy  justice 
will  be  meted  out  to  him  when  he  is  entitled  to  it, 
the  passing  of  one  political  regime  or  another,  can- 
not seriously  afifect  the  pursuit  of  his  liberty  or 
happiness.  When  he  once  realizes  that  he  has  no 
political  function  so  important  as  to  busy  himself 
about  the  election  of  competent  judges,  law  reform 

319 


CKRTAIN'l  Y    AND    JUS'IICK 

will  become  a  comparatively  minor  matter.  Slug- 
fjishness,  inertness  and  indifference  on  that  subject 
will  be  rewarded  as  they  surely  deserve  to  be  by 
delay  and  denial  of  justice  and  consequent  dis- 
credit to  the  lawyers. 


2—1 

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